Tuesday, January 22, 2019

The Name's the Thing

Much to my chagrin, my kids like to waste their time not just playing video games, but also watching videos of others playing video games. This is a big business. Apparently the top Fortnite streamer made some $10 million last year. Whaaaaat? But these services aren't interchangeable. The person doing the streaming is important to the viewer.

But what if two streamers have the same name, say Fred, or Joan, or...Kardashian. Should we allow someone to lock others with the same name out? Under what circumstances? And what if the service is simply being famous-for endorsements, etc.

Bill McGeveran (Minnesota) has posted an article that discusses these issues called Selfmarks, now published in the Houston Law Review. It is on SSRN, and the abstract is here:
“Selfmarks” are branded personal identifiers that can be protected as trademarks. From Kim Kardashian West to BeyoncĂ©’s daughter, attempts to propertize persona through trademark protection are on the rise. But should they be? The holder of a selfmark may use it to send a signal about products, just like the routine types of brand extension, cross-branding, and merchandising arrangements fully embraced under modern trademark law. Yet traditional trademark doctrine has adjusted to selfmarks slowly and unevenly. Instead, the law has evolved to protect selfmarks through mechanisms other than trademarks. In an age where brands have personalities and people nurture their individual brands, it is time to ask what principled reasons we have not to protect the individual persona as a trademark.
I liked this article a lot--especially its straightforward approach. It looks at these marks through the lens of trademark law (as it should), considering use (that is what goods and services) and distinctiveness. In doing so, it provides several useful hypotheticals that illustrate the problems of using names as trademarks. The paper also considers Lanham Act sections that specifically deal with names.

Finally, the paper discusses a couple of concerns. First is endorsement confusion. As the "service" of a celebrity becomes endorsement, then everything the celebrity does is potentially an endorsement, even though that may not be the intention. McGeveran discusses this concern. Second is the ever-present speech concern. If names are protected as marks, then it is harder to use that name in speech.

This article is a really good primer on names as marks. I think a good extension for the next one would be a topic that a student of mine wrote about last year: joint marks. That is, when multiple people have the same name - together even - then the mark can cease being distinctive of their individual goods. My student did a great case study of the Kardashian marks, showing that several of them may well be invalid, but I think this could be extended to a longer theoretical piece if it hasn't been done already.

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