When Juliet famously mused “What’s in a name?” she meant to downplay the importance of names, contending that the thing which is named (say, “a rose,” or maybe a family name of “Montague”) persists beyond whatever we call it. The world of trademarks insists on the importance of names to help us understand the differences between roses in a flourishing garden. The current state of the video game industry illustrates this point well.
I didn’t do any dedicated E3 coverage this summer, but looking back, the entire conversation happens around trademarks. The video game industry has always made use of sequels and developing franchises, and one of the biggest reasons for this has to do with the philosophy behind trademarks.
I. Building a Brand…
Trademarks exist on the theory that the creator of a product, or provider of a service, has some consistency in their work. They might rely on the same materials or recipe, they might maintain a certain standard of quality, etc. Trademarks allow an owner to benefit from consistent quality. While trademark litigation is often an argument about preventing someone else from wrongfully benefiting from an owner’s legacy of quality, the norm is just the preservation of one’s own legacy.
In the world of video game developers and publishers, this legacy is reflected in the fan reactions. Why was there such elation over “Fallout 4”? Sure, the trailers looked visually appealing, and might have even hinted at a fun game—but many other games do that every year. Why is “Fallout 4” special? Because of everything it rests upon: Fallout 3, the Fallout franchise, Bethesda Game Studio’s demonstrated caliber of game production, ZeniMax’s proven management of product launches, game director Todd Howard’s numerous awards and consistent excellence in executing his game design philosophy.
The consumers in the game industry (“gamers,” one might call them) know many ways that a game can disappoint—but because of Bethesda’s history of developing and releasing great games, the consumers are steeled against the kind of doubt that would otherwise creep in to counter excitement over an E3 trailer.
II. Destroying a Brand…
In contrast, the games industry also shows how little excitement a tainted company can generate. The perineal whipping boy of the industry has been Electronic Arts for many years now. EA continues to be the foremost example of game industry failure because they (EA and any developer they ensare) seem sadly prone to incidents which only dig itself deeper into a pit of shame and universal contempt. After “Aliens: Colonial Marines,” EA will face increased difficulty in securing game pre-orders (or having consumers believe pre-release game footage trailers). After “SimCity,” EA will find it more difficult to have the kind of participation in a product launch that game studios often rely upon in their entire marketing campaign. But unlike Blizzard, who had their own launch fiasco with “Diablo3,” EA does not have many instances of excellent games and excellent player experiences in their recent history to restore consumer faith in their brand.
III. The Law of the Brand
Trademark law is sometimes a difficult thing to explain. Intellectual property law is necessarily a little bit abstract, but copyrights and patents protect a concrete thing (a book, a painting, a movie, a chemical process, a mechanical procedure, etc). Trademarks are really anchored in the “goodwill” that a company generates though its products and services. The vagueness behind explaining trademark law can lead some to think it is not important.
Trademarks are rooted in the abstract, unquantifiable difference between the excitement over a new Bethesda game and the bitterness over Konami decision to let go of Hideo Kajima. Economists and businesspeople find that their models work best when every factor in their equations and algorithms can be carefully determined. However, they have long understood that brand loyalty and social popularity or prestige of a brand can influence the market in ways that are difficult to mathematically predict. That weird, unseen, abstract force that pushes the market in ways numbers fail to predict is both the effect of brands and the reason for trademark law.