A Thermos Full of Aspirin For the Headache of Trademarked Words Acceptable In Scrabble

A Law of Language

Language is interesting for 3 reasons: It’s neither as stable nor unstable as we believe it is, it’s more important than we think it is, it’s the primary means of human minds interacting and yet it’s not clear what it is or how it works. A human mind exploring language is something like traversing a museum of optical illusions that is constantly reconstructing itself based on the exploration.

I think this is part of why I love trademarks. Trademarks are one of the places where boring, unimaginative people (who care only about money and the weather, but only sincerely about the first) are given an example of why it’s ok for me to care about interesting, abstract ideas like language. Trademarks (especially word marks) are about the use of language to describe and define the business world. However, law wants to be stable and static, and language sometimes wants to be fluid and miasmic. Because law is made of language, there are some challenges that come from language in every field of law- but trademark law is almost made of language puzzles.

Scrabble: A Classic Language Word Game

Sometimes I get salty when I play Scrabble. Not because I lose a lot (though… that too), but because I see dictionaries as valuable tools for describing and explaining language.

I don’t think Scrabble is actually a game about language. It is about words. Some words, at least: sequences of letters that are on an approved list. The question that underpins my frustration is “How do we decide which sequences of letters make it on that list?” I think that question is really about the difference between words and language. Words are just strings of characters that we can list. Language is a complex network of decisions about communication. The flexibility and organic nature of language is the foremost challenge in determining the official list of proper and acceptable words.  The Great Scrabble Tradition (and probably also some rules) holds that “foreign words” and “proper nouns” are not permitted. Depending on the house rules, this usually includes company names, brand names, and product names.

I recently had the opportunity to play the word “thermos.” I stopped myself- I knew the word was trademarked over a hundred years ago, which would make it an ineligible word for play. I later looked the word up, unsure if there was some “definition 2” trick that I didn’t know about. I was surprised that the word was acceptable for play in Scrabble. I leapt into research and found out that the thermos trademark was actually cancelled in 1963 as a result of a Federal Circuit ruling that the word had become generic! I was so excited to learn about a trademark cancellation by a court that I didn’t even remember to be salty that I could have won that game if I’d known I could play that word. A court ruling like that is pretty rare, so this was a very exciting find.

Genericized Trademarks: A Vibrant Afterlife for Intellectual Property

Not a lot of words have the distinction of being introduced to the world as a label with a business goal in mind, and then transform into a piece of common parlance. But when they do, it is often because the business was too successful.

In copyright, works automatically become part of the public domain after a fixed number of years (realistically, whatever time Disney tells Congress to choose, but at least Congress writes down the most recent number of years in the latest copyright law amendment). Patents expire automatically after a fixed number of years (20 years for a utility patent, 14 for design). Trademarks don’t have a built-in expiration date- they’re generally just valid until they’re no longer used in commerce. But on rare occasions, the word can become generic over time. As more people get familiar with a product, they use the special name of the product as meaning the general name of the product. In my own lifetime, “Google” has changed from one of several search engines to the verb for general online research. Google fights this, a little, but they’re going to lose. It’s a little like when people try to control  copyright violations in the context of the internet. It’s very hard to stop people from singing and drawing what they want to, even if you can curb some of their publications. But if that is hard, it’s nigh impossible to stop people from using language the way they want to.

Conclusion: Trademark Law is For Consumers as well as Business

I love the poetic irony in trademark law: when you dominate the market too completely, you lose something about what made you special. When Aspirin was introduced by Bayer to American doctors, “Bayer listed ASA with an intentionally convoluted generic name (monoacetic acid ester of salicylic acid) to discourage doctors referring to anything but Aspirin.” This somewhat underhanded marketing move contributed to a 1921 court decision that effectively cancelled Bayer’s trademark.

Trademark law is made for a thriving, competitive marketplace. Its purpose is to help consumers navigate a busy and crowded marketplace accurately, and without being deceived. When the marketplace is no longer competitive, trademark law is less necessary. The rules concerning generic trademarks emphasize that trademark law exists to protect consumers from confusion and deception. If trademark law was centered on protecting businesses*, it would not make sense to cancel the trademark of a company that had dominated the market.

Just as Scrabble is a word game, not a language game, trademark law is a consumer protection law, not a business law. The distinction seems small, but sometimes a small difference matters. Like when you decide not to play “thermos” and lose a round of Scrabble by less than 10 points. One word– and the legal and linguistic status of the word– can make a difference, for both Scrabble and trademarks.

 

*Trademark law does protect businesses, of course: it prevents other competitors from benefiting from the branding and goodwill of a company, and gives legal backing to the abstract notion of “goodwill” that makes it a viable, montized asset of a company.

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What the Internet of Things can Learn from “The Order 1886”

Great (Sounding, Looking) Potential

The Order 1886 has great quality graphics, but is a poor quality game. Just because the technology involved is cutting edge doesn’t mean the final product is good. The internet of things relies on some cutting edge technology and novel ideas, but that doesn’t mean the final product is always favorable.

I’ve been hearing about the “Internet of Things” for several years now. Middle-aged entrepreneurs are just sure that this “the next big thing,” except it’s going to be bigger than the car or the light bulb. From what I’ve seen, IoT is a glossy, shiny, pretty gimmick that hasn’t shown it’s poised to really solve problems that consumers feel they have. So far, we don’t think a fridge that buys eggs for us is really what’s missing in our lives.

Having sophisticated technology isn’t the same as having a great (or even marketable) tech product. In the same way, having glossy graphics isn’t the same as having a good (or even marketable) game. Both IoT and Order 1886 are impressive at a glance, but fail to live up to expectations as one spends more time with them.

Burger King Sets Itself Up For Trolling

The broad IoT idea continues to reveal vulnerabilities and half-thought-out applications. A few months ago, Burger King aired an ad in which the actor in the commercial asked the viewer’s smart phones to read the first paragraph of the Wikipedia page about Burger King’s flagship product, The Whopper. The completely predictable result was that people started vandalizing the Wikipedia page in question, leading the ad to tell people that The Whopper contained humans and cyanide.

There’s a lot I could go into about this example, especially about troll behavior and the weaknesses of IoT’s reliance on unsecure nodes. I want to highlight that the problem wasn’t about hacking into Burger King or Android systems. There are some concerns with IoT and that sort of hacking, but there’s another problem: Entrepreneurs rely on the web without knowing what 4Chan is or having have never been verbally abused by a stranger for the length of an entire League of Legends match. That is a mistake.

This example also illustrates why IoT hasn’t gotten traction: It’s still a gimmick that breaks often. Even when it works at its best, IoT is a fun and surprising answer to a question no one asked. The best case for Burger King’s commercial is that they surprise a few consumers, but also stir fears about privacy and security in doing so. The success of IoT still hangs on the uncomfortable reality of diminishing personal privacy, and many consumers haven’t completely reconciled leaving the past with entering the future.

The Order 1886 Fails as a Game, IoT Still Fails as a Tech Product

One of the reasons people were so angry about The Order 1886 is that the trailers looked so good. People bought into the promise and the hype, and then it failed to deliver in meaningful ways. Similarly, the more glossy the presentations about IoT get, the more consumers will feel the gap when they don’t experience a meaningful impact as a result of using it.

It’s the applications that go on top of the tech that really matter. Platforms and apps that balance consumer’s emotions about privacy and security will be the only thing that can really bring about the kind of pervasive, omnipresent IoT about which I keep hearing (excited and vague) presentations.

Things that look really good but don’t do anything are called art. Things that do something useful are called products. Usefulness is not the sole factor in a product’s quality or its marketability, but it is important- especially if it wants to be more than a fad or gimmick that ends up with a discount sticker in the bargain bin.

Privacy (as the Withholding of Information) in the Information Age

Business professionals in e-commerce talk about information like it is today’s fundamental commodity. Yet information— raw data— is less helpful than we tend to think. Privacy becomes harder to maintain in an era in which business and government think that more data is always better and that accruing data will solve problems. Information is necessary, but not sufficient, to solving problems and pushing progress along.

Lots of entities want information: governments want information about their citizens, employers want information about their employees, corporations want information about their consumers, etc. Such entities have always wanted information, but only recent technological developments have made it reasonable to obtain and organize that information. The biggest remaining barrier to such information collection is the ethical and legal concept of privacy. My contention is that the mere gathering of data is less helpful than the gatherers might think.

One way to think of this issue is to see human action as having two components: 1) an internal motivation or attitude and 2) an external display of action. So, if I purchase a large supply of plastic drinking cups, the store computers may recognize my purchase and correlate it to the kinds of other items people purchase with drinking cups: plastic cutlery, snack food, soda, and so forth. The store wants to predict my motivation by examining my action and correlating my action with similar actions and using inductive reasoning to sell me more things. But what if my motivation in buying many cups is to have a cup stacking competition? Or to have a 2nd grade class plant lima beans? The problem with relying heavily on gathering information is that you can only make guesses about the internal state of the actor.

The debatable assertion is this: Humans cannot be captured by data sets. Some (who probably favor Hume) may say they can, but it must be conceded that the data set must become extremely, extremely large. Perhaps more importantly, some elements essential to that data set cannot be collected through transaction records, e-mails, Facebook “likes”, tweets, and all other collectable data. Seen in this way, a reasonable fear emerges: as entities gather data, they act on that data as though it is a more complete picture than it actually is. Another way to state this issue is “data does not explain itself.”

There are a few important takeaways about the limits of the power of data:

1) You don’t get to know people from their Facebook profiles.

2) Stores know what people buy, but not always why they buy them.

3) Privacy can protect both parties from an incomplete picture.

4) Data is a raw material. It must be processed with understanding, refined through meaning and context, and crafted with wisdom into usable information and then into intelligence.

5) Computer systems can record observations of fact and interact according to algorithm, but cannot “understand” any “significance” or “meaning” of any data.

NOTE: There is so much to this subject! I expect to return (probably repeatedly) to this subject in more specific settings to explore deeper nuances and applications of issues.

“Oh, Reputation, Reputation!” or “Caveat Emptor”? Gearbox, Blizzard, and GenY’s Revival of Old-Timey Quality.

The latest kerfuffle in the gaming world is over game studio Gearbox’s recent release of “Aliens: Colonial Marines.” The claim (apparently upheld by journalists for Escapist, Kokatu, and IGN) is that the game is terrible. The debate that goes further is whether Gearbox was deceptive in its advertising, demos, and promotions of the game in an effort to get people to pay for the game before it hit shelves (and customers found out that the game was perhaps not as amazing as expected).

Blizzard took a decade to release Starcraft2, and fans were ultimately accepting because of its fine quality. Duke Nukem Forever took forever to be released, and society was both disgusted and apathetic. When Blizzard released Diablo3 after a decade of waiting, fans were outraged because the quality of the experience (from Error 37 to RMAH delays to gameplay curve) just wasn’t up to expectations.

Brands are important to many industries, but I think that IP-based industries feel a special dependence on their reputation. Because the expression is protected by the copyright (and the idea is not), consumers go to their favored bran because they expect a quality of the expression. You can get a very similar game or story from almost any major studio, but people come to trust (or distrust) studios for their quality of interface, graphics, and overall gameplay experience. When a studio fails to meet expectations, there are always plenty of other places to turn to for an FPS or RPG or RTS.

When large, successful studios release poor quality products and then fail to apologize sufficiently, it can create the impression that the studio no longer cares about its fans as much as it cares about its money. Somehow, corporations sometimes think they have to weigh the interests of their “investors” against those of their customers, forgetting that customers are the ultimate investor in any business venture.

The videogame industry might have the lowest tolerance for deceptive advertising or failure to meet basic expectations. The consumer base is often prone to research and has a very communicative community. The nature of an IP based-business demands a lot out of the expression of the idea. Todd Howard likes to note that “execution” of an idea is more important than the idea itself; having a great idea doesn’t matter as much if you don’t pull it off as well as a less awesome idea done really well. Because no game studio can copyright the idea of a first-person shooter or stealth-based game, the ability of a studio to execute its ideas might be the single core criterion by which a videogame can be judged and compared to its rivals.

I don’t think “Aliens” would be in such hot water if the advertising had been less ambitious. I don’t think any of the games I mentioned would have faced such negative receptions if the expectations had not so far outstripped the reality, and if the industry wasn’t able to offer so many alternatives (Torchlight2 is shockingly similar to Diablo3… except for all of the errors and problems).

 

UPDATE 4/3:  http://www.escapistmagazine.com/news/view/123059-Sega-Admits-to-Inaccurate-Aliens-Colonial-Marines-Trailer

Happiness in a Structurally Unhappy Culture

Modern media continually inject us with two anathemas: news and advertising. I will address the latter, which hinges essentially on a message of the form: YOU NEED X. This is what David Cross called “an existence based on manufactured necessity.” (Alan Watts has spoken somewhat on this subject from the Zen Buddhist perspective; without recommending him per se, I recommend reflection on his commentary.)

Individual notions of happiness are subjective, and so ideas of unhappiness are, too. I focus on one issue: does something about the capitalist model nudge us towards something we are prone to find unsatisfactory? I think so, and I think advertising is the connection between a business’ need to make profits and the idea that we lack (or “want”) something. It does not seem likely that we will make as many purchases if we do not feel we need or want anything. Markets are created as people discover a lack—and so there is an interest in manufacturing those lacks (“wants”). A common response to wanting something is some kind of unhappiness. The argument, then, is this: Capitalism emphasizes markets to create profits for businesses. Businesses use advertising to create and expand markets to generate more profits (for the business). Advertising often tells consumers that they lack something in their lives— that something is wrong, insufficient, or missing—and that the business can resolve it. The effect is twofold: 1) we feel our lives are constantly amiss, 2) we feel a continual need to “fix” our “broken” selves/lives/identities/being—and this requires that we work to get enough money to pay for these products and services throughout our lives.

If this line of thought has anything to it, then it is simplistic to think of the problem as strictly being money or power systems or economic structures. One of the fundamental assumptions of this argument is that our happiness is at odds with feeling that something is wrong with our personal state of affairs (whatever we may call “our lives”). This gives us a different notion of what the problem is and how it might be resolved (or what attempted solutions might not work). It seems that mere changes in external systems (especially economic structures) won’t be sufficient if we remain under the belief that our lives are ineffective and in need of constant aid. The corollary is the question: Can we then recover some of this happiness within the current system? If no economic or political system can make us happy so long as it imposes a continual feeling of our own inadequacy and insufficiency, can we achieve feelings of worth and sufficient value within a system that attempts to convince us of our continual want? The answer is crucial in helping us decide whether the next great revolution must be an internal or external one.