A Theory of Trademarks in the Blog Era

On April 5th, 2005, as you were previously warned, I presented in New York City as part of a seminar on Advanced Trademark Issues for the IP Practitioner at the Association of the Bar of the City of New York (the “City Bar”). My written materials distributed to participants, including those who subscribed to a Westlaw webcast of the panel. Here is the essence of my thesis, without the links and exhibits used in the course materials:

The IP implications of blogs beyond trademarks, especially regarding copyright but even recently involving the publication of trade secrets, are also wide-ranging. The line must be drawn somewhere, however, so here we will limit our brief survey to the tangent where trademarks touch blogging and blogs, the first “paradigm shift” with respect to the Internet in our century.

What trademark issues are implicated by blogs?

Unlike virtually no other mass publication of trademarks that is likely to interest mark owners, the Internet raises few barriers to entry. Blogging presents even fewer – virtually none. Trademark enforcement practitioners who are used to the frustration of chasing after ethereal Internet-based trademark infringers are understandably aghast over the incredible ease, and functional anonymity, with which bloggers can instantaneously upload text, graphics and files, including HTML links. Blogger software platforms, including substantial hosting resources, are available for free from services such as Blogger and many others.

There is virtually no editorial, legal or other oversight over what content is to be found on blogs, as is the case on most privately-hosted websites, but while most recreational blogs are graphic nightmares, even the simplest blogs present a structure that features easy interactivity, a choice of practical and attractive graphic designs, and numerous add-on features that enable even lightly experienced amateurs – for no or very little cost – to easily monitor the volume, origin and trends of reader traffic, feature cooperative or trade advertising (and for higher-traffic blogs, even paid advertising), and take advantage of the burgeoning phenomenon of online blog networking.

The power of this last can hardly be overstated, because the Internet is ultimately about connection and networking, and HTML links form an electronic daisy chain of countless dimensions that spans the world along topical, interpersonal, professional and technological axes. The extraordinary simplicity and accessibility of blogging software on one end, and blog distribution on the other end (i.e., via any Internet connection utilizing a standard browser), makes blogs the self-publication phenomenon of our time.

One reason blogs succeed is because they wrap words in graphic appeal. Combined with the dynamic nature of the Internet, blogs deliver bite-sized portions of text which, at best, are so easy to publish and digest that some fear blogs threaten professional journals as well as the established news media, known in the “Blogosphere” as the “Mainstream Media” or “MSM.” Unlike journals and traditional media, there is little editorial oversight, an obvious negative as well as a positive – rather than institutional endorsement or pre-publication peer review, published materials fight immediately in the free market of ideas subject to the ability of the blogger to network well enough to get the attention of the desired “eyeballs.”

These features are enhanced by the dynamism of hypertext linking, which replaces footnotes, bibliography and, in some cases, even exposition by allowing readers to “surf” directly and immediately to the actual cited sources. By this method, content on the Internet and in blogs in particular is particularly “rich” in a semantic sense.

Herein lies the opening to the trademark issue. In a media-soaked era, and after generations of advertising, marketing and brand management, both the visual vocabulary and lexicon of Internet users is also “rich” – in brand names, commercial icons, logos and favorite characters, products and mottos. Communication on the Internet, typified by blogs, is highly symbolic, and trademarks, if they are any good at all, pack a powerful semiotic punch.This attraction is intensified by the countercultural, or at least individualistic, tone affected – and frequently realized – widely throughout the blog subculture.

There are various reasons this might be the case, including the vestigial “nerd” or “techie” culture of the Internet; the option (frequently chosen) of anonymity, either actual or practical; the generally subversive dynamic that arises from competition with the “MSM”; and the highly politicized atmosphere of the “Blogosphere,” in which the vast majority of bloggerss, regardless of nominal topic, are fairly well identifiable as either “conservative,” “liberal” or, far out of proportion to the voting population, “small-L libertarian.” This environment, coupled with the still novel capacity for perfect replication or alteration of trademarks and icons made possible by digital technology, makes “unauthorized” use of these politically and culturally loaded semantic designators on blogs and other Internet websites irresistable.

Blogs have a number of other interesting qualities that get the attention of in-house trademark counsel. Blogs have an almost magical charm when it comes to search engines – one of the most interesting areas of trademark litigation in the last year. See, e.g., Government Employees Ins. Co. v Google, Inc., 330 F.Supp.2d 700, 704-705 (E.D. Va. 2004). There are several reasons for this, including the prevalence of topical keywords and phrases in blog text, the usually straight-to-the-point nature of blog posting, each post’s page structure, the coding utilized by blog softare, the concentrated “target” structure resulting from the fact that a good blog addresses only one subject per post, the blog site’s information structure, and the linking phenomenon. See, Fredrik Wacka, “Why Blogs Rank High In Search Engines,” Web Pro News.

Blogs also have a tendency, because of the reasons discussed above, to develop or cater to “cult”-type groupings. Sometimes these blog (or website) “cults” are themselves dedicated, in the nicest possible way, to beloved brands, trademarks or other intellectual property assets.Others merely utilize them easily broadcast a state of mind or associate the blogger or the blog with a certain well-known sensibility. And sometimes blogs, like other websites, just plain “abuse” valuable trademarks in constitutionally protected, but – for trademark counsel – nightmarish ways.

Blogs are democratic, self-obsessed, essentially unaccountable, cheap, technologically powerful, judgment proof, ungoverned, interconnected, and very, very public – meaning that intellectual property lawyers, or those who play them on the Internet, should proceed with care.