My former employer Lotus has (re)-launched Symphony, an office applications suite that competes with Microsoft Office. (Yes, I know this is like sending Elmo to take on Darth Vader.) Symphony uses Open Document Format, an open standard for application files.
The fun part is that this is the sequel to Symphony – the original, released in 1984, ran on DOS and was named by John Dvorak as one of the 10 worst software disasters. (Symphony is #4, Microsoft Bob is #10. That hurts.) Thus, IBM is recycling a trademark – and one with questionable associations to boot. (That “boot” may take a while if you use Windows.)
From a classical trademarks perspective, this makes sense. Trademarks allow IBM, as the Lanham Act tells us, to “identify and distinguish [its] goods… from those manufactured or sold by others and to indicate the source of the goods.” Computer users see “Symphony” and know immediately that IBM produces the software. (Let’s assume the users understand that IBM bought Lotus back in the 1990s.) As law students learn, trademarks help reduce consumers’ error costs by helping them find goods generated by a particular producer.
But trademarks do much more than that, and this is what interests me. Do you think Ford has plans to revive the Edsel? No? After all, car consumers probably know instantly that Edsel = Ford. But they also think Edsel = lemon. Trademarks indicate not only source, but also product characteristics. The challenging part is that those characteristics aren’t stable – Symphony, Tab, Taurus – and it’s not clear why we protect a brand trademark that may no longer usefully convey information about what the product is rather than who it’s from.
Technically, trademark law has a tool for this: abandonment. If you take actions that cause your brand to “lose its significance as a mark,” then your mark can be canceled – and your competitors may move to do so. But abandonment is difficult to show, and courts are reluctant to find abandonment. Moreover, it’s not clear what “significance as a mark” means. When Ford slaps Taurus on an entirely different model – the Five Hundred – car buyers still know instantly that the model is a Ford. They just don’t know what the car itself is like. So, if “significance” means only “source designation,” then abandonment doesn’t work well.
I think we need a legal tool to police moves by mark owners that may lead consumers astray when a mark for a model or product type – think iPod or Blackberry – no longer accurately reflects the product’s characteristics. There are at least two hard problems here. First, producers need to innovate; freezing consumer expectations at a given point in time is not helpful. Second, how do we measure and capture the key characteristics of a product that consumers associate with a mark? How much does Coca-Cola have to change the drink before we force them to call it New Coke? I’d love your thoughts on this.