A New Englander Moves to New Orleans, Chapter Twelve: When Trademarks Fail

[earlgreytea68]

Trademarks are supposed to be a form of shorthand. Theoretically, they are protected under U.S. law because they decrease transactional costs: Instead of being overwhelmed every time you shop for something, you can rely on well-known trademarks as harbingers of quality. A trademark tells the consumer, supposedly, exactly what they are going to get, whatever that might be. A trademark can stand for luxury or it can stand for affordability, it can stand for high-ended-ness or it can stand for efficiency or it can stand for environmental-friendliness or it can stand for all of these things at once.

I have devoted my career to the protection of trademarks. Now, partly this was because I find it to be a creative area of law. Arguing whether two marks are similar can be a bit like analyzing two poems: You look at the feel of them, the impression of them. That's the fun of it, for me. But it was also partly because I am a total trademark type of person. I love trademarks. I love how they make my life easier. I'm a busy person, so I have become, in reaction, very brand-loyal. I look for the trademarks I know I've liked in the past, because I know I'll probably like their product again. I don't have to stand in stores reading descriptions and comparing ingredients, because I can rely on past experience and just know.

And I am not alone here, by any stretch of the imagination. People rely on trademarks every day. I think they think about it less when they are not trademark attorneys. It's just part of the fabric of life these days. I am the crazy person running around policing everybody's uses of Kleenex(R) and Band-Aid(R) and Biro(R) (my betas love me). Everyone has something on their grocery list that they pay a little more for because they just LOVE it, something that they would never think to buy the generic version of: That's reliance on trademarks, right there.

And you know when you really need trademarks to work? When you move away from home. I am here, away from home, and everything is a vast wilderness of new things that I have no prior experience with and no understanding of and sometimes I panic and that's when I really need trademarks to work. And that's when it's so disconcerting when they fail for me. I don't know what to make of things like that.

For instance, I have had the hardest time finding greeting cards here. I'm perplexed by this. I ran into a CVS to buy a card, and they didn't have Hallmark. I know, that there is no difference between Hallmark cards and any other type of card, but I like Hallmark cards. I always buy Hallmark cards. I'm lazy, this is what I do. And CVSs always carry Hallmark cards. Not this CVS. And this place didn't have any first birthday cards, which was what I wanted. So then I looked up a Hallmark store and went to it. The card selection was terrible. I was so disappointed. They had, like, one first birthday card in the entire place. What is that? That is disgraceful! I am used to Hallmark stores being bounties, of every type of card you could ever want. AND they didn't sell Yankee Candles there! I know that there is probably no difference between Yankee Candles and other types of candles, but Yankee Candle has this Halloween scent called Trick-or-Treat and I love this scent and I wanted it and Hallmark stores at home sell Yankee Candles. Not this Hallmark store.

This is what I mean: A Hallmark store in Rhode Island should be exactly the same as a Hallmark store in New Orleans. Exactly the same. Otherwise, what is the point of the trademark to me? If I'm not going to get what I expect from a Hallmark store, then you might as well call the stores different names, because the trademark has stopped identifying a uniform identity that makes sense to me. My transaction costs actually increased because of the trademark confusion, because I drove way out of my way to get to this store, and then it was hugely disappointing to me.

A breakdown in trademark function was at the heart of the Dunkin' Donuts Incident of early September: A Dunkin' Donuts in New Orleans should be exactly the same as a Dunkin' Donuts in New England. Exactly the same. That's what I walked in there wanting. I only went there because it had the trademark "Dunkin' Donuts" stamped on the outside. When it didn't have the product that I wanted, that trademark became a waste of my time. Why bother calling it "Dunkin' Donuts" unless the purpose of calling it that is to indicate to people that it is the same as the other things called "Dunkin' Donuts" they know? If it's not going to be the same, call it something different.

I know this sounds like I am insane. I also know that the prevalence of national brands is killing local businesses, and that's a sad thing, I understand that. But the truth is that I am away from home right now. I may be in the same country, but most of the time I feel like I barely speak the language here, like I am just struggling along, trying to translate. Seeing a trademark that I think I know and love is a moment of home for me, and when it turns out to be strange and unfamiliar, it can be immensely disappointing.

I love local businesses, I genuinely do. I try to go to local coffee shops to write, and to non-chain-restaurants, and to farmers' markets, and to small specialty shops. I really do try to do these things. But sometimes I get homesick. And on those days, I go to the mall. I sit between the Bath & Body Works and the Claire's and I take solace in the fact that I can call my sisters and we can all stand in a Bath & Body Works and buy the same soap at the same time, even though we're a thousand miles apart. Trademarks can be, at their best, something like home.

And I guess that's why I'm a trademark lawyer.

Comments

[starlightmoonla.livejournal.com]

Last week we learned about Intellectual Property from a guest speaker and learned - briefly - about patents, copyright/fair use and of course Trademarks. It's one of my favorite classes ever and I can now totally see why most people do think about trademarks whether they are consciously aware of it or not.

I'm starting to notice it in myself.

So, I totally understand where you're coming from in this post. While I was in London I decided to get Starbucks. I love a Venti Passion Fruit Iced Tea Sweetened and it wasn't until I got to the counter that I thought about the possibility that their menu could be different. This particular drink did come slightly differently.

It wasn't sweetened.

It's such a tiny thing compared to the number of things they could change but for a second that feeling of 'home' wasn't there. Starbucks has always felt a bit like home, just like Borders used to, because I grew up with it and to see that something was slightly different was... weird.

It's no where near what you had to go through at the Hallmark and CVS stores. I agree that stores should be identical regardless of where one is located. I guess the size of the store would determine just how many items they could have but it should still be CVS/Hallmark/Big Name Store.

Then I think about how there's a good chance that their merchandise is based on what sells more. And while that's understandable it's still unfortunate.

It does change the store in the eyes of a consumer especially a loyal brand member.

I'm sorry you're going through home sickness. Hopefully there are more good days than bad. *hugs*

[earlgreytea68.livejournal.com]

Oooh, was the guest speaker interesting? IP can be a really interesting field of law.

Those tiny differences, in things you expect to be just like home, can actually be more jarring than the huge cultural differences that you're dealing with when you go abroad.

And yeah, it makes sense that different things sell more in different parts of the country, and so the stores stock different items as a result, but it just throws me off.

There are many more good days than bad. If you have to live away from home, this is the job to have while doing it. It's just that some days I feel it acutely, and it's usually when something like the DD or Hallmark thing happens.