September 14, 2005
Madison on Branding
Posted by Mike Madison

I'm an IP guy, so I took a look at Vic Fleischer's Branding paper and discovered a very cool piece of work.  As I expected, Vic takes a well-deserved swing at the gap that yawns between branding and the legitimate scope of trademark law.  Google shouldn't be able to trademark its IPO structure.

But there's more to the IP side of this story than trademarks.

What about copyright law?  Google, Apple, Ben & Jerry's all have positive stories to tell about their deals.  Stories can be copyrighted -- from the plots down to the characters.  Sure, there are doctrines like the idea/expression distinction, merger, and scenes a faire to worry about, and the copyright enterprise may founder on the notion that deal structure is functional -- not expressive.  But isn't that Vic's point?  He argues that there is communicative expression in deal structure; we just have to tease it out.  And copyright lawyers do that all the time.  Bill Lerach has threatened competing plaintiffs' class action lawyers with copyright infringement suits, alleging that they wrongly copied his firm's pleadings.  That sort of claim seems far-fetched here (though as a lawyer in Silicon Valley, I wondered more than once about the propriety of re-using deal documents prepared by other law firms, in other deals), but the world of copyright can be a crazy place.

And don't forget patent law.  Can Google patent its deal structure?  In truth, that possibility strikes me as not nearly as far-fetched as the possible copyright claim.  Partly that's due to the shadow of State Street Bank v. Signature Financial Group, which made the world safe for "business method" patents.  Partly that's due to a next-wave phenomenon brought to the business world's attention last month by Forbes:  "storyline" patents.  An enterprising young patent lawyer, a Georgetown grad and a real-life rocket scientist, is trying to build a practice on the premise that an author can patent a plot.

That sounds incredible, but if State Street Bank is right and the only meaningful requirement for patentability is that the invention have some specific utility, then "storyline" patents may be on their way in.  Fictional storylines build Hollywood franchises.  More concretely, functional storylines sell Google shares.

So I'm not at all confident that storylines (of any sort) are excluded from the domain of IP subject matter.  Vic's next paper might push his point about the obligations of transactional lawyers one step further:  when designing a deal, not only should they be attentive to its branding implications, but maybe they should think about their liability exposure if they fail to explore all possible sources of IP protection for their clients.  Red herrings and provisional patent applications -- flip-sides of the same coin.

There are, to be sure, a few questions remaining.  Any particular storyline (or deal structure) might not be expressive enough to justify a copyright, or useful enough to warrant a patent.  That's not an unusually difficult problem for copyright courts, since they always have to sort out the protectible and the unprotectible.  But in patent law, that distinction is handled by the Patent Office, at least in the first place.  The Patent Office hires experts in the discipline to examine patent applications.  Only experts in patentable fields are eligible to sit for the patent bar.  Maybe things are looking up for literature and economics Ph.D.s (at least the ones who don't get jobs teaching law).  At the least, not only do deal structures teach attentive business lawyers something about branding, but they also teach attentive IP lawyers something about business.

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