I’ve written an editorial on trademark law that’s very timely, given that today is Fair and Balanced Friday.
There aren’t many areas of business wisdom more fraught with superstition and dread than trademark lore. Trademarks exist, mainly, to prevent consumer confusion, but for many business people, they’re important competitive assets. They’re the company’s good name, upon which it trades, and companies have a duty to their shareholders to defend those good names. And defend it they do, even if the defense is so odious that it makes the company synonymous with litigious bullying.
Ask a lawyer for a 100 percent assurance of trademark protection and he’ll give you plain advice: pay me to send a nasty letter to everyone who utters your name without due care and specificity, or I can’t guarantee you that your mark won’t slip out of your fingers and into the public domain. He won’t be lying: 100 percent certainty is the kind of unrealistic objective that requires extraordinary, self-defeating measures to achieve.
Ask a security consultant to eliminate 100 percent of the shoplifting in your store, and he’ll tell you to cavity-search all customers on the way out. Sure, it’s effective, but if you want to stay in business, you’ll need to consider trading off smugly complete certainty for a cheaper and more friendly 95 percent (or even 75 percent!) solution: say, magnetic door-monitors and a couple of plainclothes rent-a-cops in the aisles. Your legal counsel works for you: he’s capable of giving you the same kind of 95 percent solution that your security outfit is — and if he isn’t, maybe it’s time to seek better counsel.