Companies have all kinds of intellectual property (IP), including trademarks, but just how important is that IP to a company? As a business attorney for nearly 40 years, Professor Patricia Lee of Loyola can tell you that trademarks and other forms of IP are hugely important and becoming more important every day.
As the director of the Loyola Business Law Clinic, Prof. Lee and her students find that trademark and other IP issues are a natural part of assisting and counseling the clinic’s clients. “Trademarks are very important to business startups and non-profit organizations,” said Prof. Lee.
So, where is Prof. Lee from and how did she get into business?
While big companies may have dozens of trademarks, smaller and lesser-known companies can also have valid trademarks, as long as they satisfy the trademark criteria.
Can a large company infringe a smaller company’s mark? Yes! This is sometimes referred to as “reverse confusion,” where the small company is the first user and the large company is the later user. But, there can still be confusion among consumers. The larger company may use its money and resources (like ads) to infiltrate the smaller company’s market with a similar mark on similar goods or services.
I love board games and have been playing a lot of Settlers of Catan online during the pandemic. I use a site called colonist.io, which is an offshoot, unaffiliated version of the Settlers of Catan game. During my Intellectual Property (IP) class with Professor Ho earlier this year, I wondered how IP rights extend to board games. When we tend to think of IP, we might think of cool technological inventions for patents or Disney’s Mickey Mouse for copyright. IP generally relates to protecting human created products, names, and expressions, and can give its owner rights to protect these.
Thousands of people have taken to the streets, amid the COVID-19 pandemic, to demand justice and equal treatment for Black Americans after the murder of George Floyd. Throughout these protests, the slogan “Black Lives Matter” is often used by those condemning the treatment of Black Americans at the hands of police officers around the country. Is this phrase a trademark, and if it is, who owns it? Do trademark principles allow the Black Lives Matter Foundation, an entity associated with the movement, to have a trademark in phrases such as “Black Lives Matter” so that they can prevent other entities from commercially profiting from using it?
Let’s start by discussing some trademark principles.
Having a trademark may provide business owners protection to create a unique brand for their company, but at what cost? Having and maintaining a trademark comes with financial burdens that may create a roadblock for entrepreneurs looking to build their brand.
A. The smell of Play-Doh B. Harry Potter’s Marauder’s Map password, “I solemnly swear I’m up to no good” C. The basketball sensation around Jeremy Lin, “Linsanity” D. Paris Hilton’s catchphrase, “that’s hot”
IP is everywhere and affects everyone. This principle was reinforced when I took Intellectual Property Law with Professor Ho during the Fall 2018 semester. We regularly had examples in class regarding the many ways IP intersects with everyday life, even including a copyright infringement case involving Kanye West. There were more examples at the end of the semester when students presented real and/or realistic applications of IP law. I especially enjoyed working on my final presentation with Jessica Fenton involving a local mom-and-pop donut shop called “Dunk Donuts.” If you’re thinking that sounds like Dunkin’ Donuts, so were we—and wondering whether this Oak Park donut shop might be liable to the national donut chain.
Chicago-based, fast-food powerhouse McDonald’s has locations in over 100 countries. Accordingly, it is difficult nowadays to find people in the world that are not familiar with the Big Mac, a McDonald’s staple since 1967. Regardless of which language a McDonald’s menu is displayed, consumers relate the word “Big Mac” to the burger’s signature structure: two all-beef patties, “special sauce,” American cheese, lettuce, pickles, and onion, all served in a three-part sesame seed bun.