First published May 19, 2013.
Last year there was much Strum und Drang here about INTA — sorry, I mean The I-N-T-A!, which stands for International Trademark Association! (now there’s some INTA branding wisdom for ya) — annual meeting. In a series of blog posts (here and here and here), I asked what I thought, consonant with my characteristic self-importance, were important questions to be answered. The main one was: Is the INTA a lobbying organization or a professional organization?
You’d think the second, because almost everyone involved is a lawyer. But while the INTA may be of lawyers, it was not founded by or for lawyers:
The not-for-profit Association was founded in 1878 by 17 merchants and manufacturers who saw a need for an organization “to protect and promote the rights of trademark owners, to secure useful legislation and to give aid and encouragement to all efforts for the advancement and observance of trademark rights.”
So I didn’t even have to ask; after all, I should have known the answer to this question in the first place.
Indeed: The consensus about the quality of panel discussions is now so widespread that I don’t need to repeat it. Even the third day’s traditional can’t-miss session — the annual roundup of case law by Ted Davis and John Welch — seemed sparsely populated. Could that be because the facilities were so very Texas-sized?
But that doesn’t explain a phenomenon I observed for the first time ever, though it may have been going on longer than I, naive as I am, had realized: A lot of people who are serious trademark lawyers, including names I know well, go to INTA every year… but they don’t go to The INTA.
They come to town all right. They book a room. But they don’t register for The INTA. They skip paying four figures to attend panel discussions bearing the titles of cutting-edge issues in trademark law but at which in fact the most pat nostrums are repeated, heads nodding in unanimous agreement — or, maybe worse, mock “disagreement” among the big-firm partners and their alumni who send the big-brand legal business to the law firms that placed them.
I kid the INTA about saying “The I-N-T-A” instead of, you know, “inta” — I kid The INTA because I love it, you know? But on reflection it seems that the trick of succeeding in The INTA is perhaps in knowing what not to say — at least on the big stage.
This is just common sense if you know on which “side” (i.e., dark or light) your bread is branded.
Don’t say, “We can’t get away with the meritless threats of Lanham Act litigation on which so many of us have built our ‘brand management’ strategies now that we have to worry about the Streisand Effect” — say, “We’ve found that the best branding is engaging with the consumer!”
Similarly, want to talk about trademark bullying? Briefly mention two or three examples (oddly enough, using the same examples you might find mentioned in this article) and conclude that they’re not really bullying (kind of like in that article, actually!) (and no — don’t cite the article! Duh!). Apologize for not discussing any actual examples of trademark bullying because doing so might offend a The-INTA member company, or, aw shucks, one of my clients, wouldn’t you know? (This actually happened – again resolving, definitively, my original dumb question.) Then come around to the edgy, original conclusion that maybe we shouldn’t write dumb cease and desist letters any more — you know, what with these crazy kids and their Intertubes and all.
It’s easy to crack wise, but the reason, Mr. Wiseguy Blogger, those guys are up there on the panel and you are not is that the people on the panel understand what to say and when to say it. And when not to say it.
And, not to get to all Kurt Gödel about this, but you. Do. Not.
I don’t, I don’t! I can’t; I won’t.
But I loved INTA this year! In fact, the fun thing about this year’s annual meeting for me was not The INTA at all — it was the UN-TA. No, it doesn’t stand for anything, so it’s more like “Un-TA,” but I am going for verisimilitude here.
There are traces of the un-TA at The INTA, actually, such as Table Topics. (Since I’m just a blogger who represents non-the-INTA members I don’t have to worry that by saying this, someone’s going to do to Table Topics what they did to the old “INTA list,” right?) I love Table Topics; The INTA, to be fair, even let me moderate them a couple of times.
At Table Topics, a whole bunch of real trademark lawyers from firms and companies of lots of different sizes, including big ones, sit down over breakfast or lunch at the central conference area and talk about what we do in the trademark field. We acknowledge our clients’ limitations, goals, budgets; we acknowledge our own. We listen, we learn and, well, yeah, we laugh! (Mostly we laugh at the aluminum-foil “trade dress” of the kosher meal they eventually bring out for LIKELIHOOD OF CONFUSION®.)
Lots of big clients and big-firm lawyers participate in Table Talks at the INTA, but don’t get me wrong — not panelist types, not so much. Committee chairmen, board members of the INTA — I can’t recently remember seeing too many of them at Table Topics. I suspect they eat a lot better during meals at the annual meeting!
There’s a point where the ground is such a long way down that there’s no good time or place to tell it like it is… at least not one that just anyone can sign up for!
Indeed, the best of the un-TA is experienced at events like Meet the Bloggers and the Trademarks e-List reception. While the former event is cosponsored by the rare likes of chaps like John Welch and Marty Schwimmer who are allowed at the grown-up table at the INTA despite maintaining dogged independence, it is the crowd you meet at these receptions that makes un-TA worth attending no matter where it’s held.
These events, these folks, are, well, “inta”-INTA. At these “events,” there might be music playing, but it’s not blaring so loud that you can’t hear yourself talk. Because the people who came, came to talk.
They love their work. They love trademarks. They love serving their clients — big, little and in-between.
They love winning, they hate losing for those clients. But they’ll talk — we’ll talk — and we’ll listen to each other’s talk, the lusty, beery talk of real lawyers who have real clients, or those who want to listen to them; of wins; of losses; of office actions and common-law rights. We drink and we laugh and we talk the good, the bad and the ugly in the work we do and how we think we might get more of it… and where we know to look, and where not to.
Is this really un-TA?
No, I’m getting old myself, you know; and I says it’s INTA and I say it “inta.”
And I love that INTA. It’s open to everyone who knows what he’s talking about, wants to learn or actually cares with respect to trademark law. It’s not for everyone, just like this blog is not for everyone. It’s only for those who want it.
And look, there are plenty of other things to value, and I don’t have a problem with The INTA for valuing those things over ideas, engagement — real engagement, not corporatized simulated engagement — and even a little discomfort along the way. It’s a damned good living if you can hack it the other way, and getting all exercised about trademarks and free speech and the problems with a trademark law system that often smothers competition rather than protecting it may or may not put food on your table as readily.
And it’s true that most of the “inta” folks may never be elevated to that place where only those-who-know-what-not-to-say are allowed.
But maybe that’s the reason — the fact that some of us just don’t know when to shut up or how exactly to play the game or even necessarily where the field is located — maybe that’s why, when we do say something, someone is actually listening, and maybe even hearing!
As opposed to, well, just saying things . . . the right things; the judicious things; the smart things.