Tuesday, 22 January 2013
Given this estimated likelihood of success and the fact that the client has not begun to use the mark, you advice the client to select another mark. You are convinced that you have given sound, practical counsel. And then the push-back begins from the client. "The marks aren't really alike"; or "I know this field, no one will be confused"; or "what about three other similar marks that are registered"? If none of these manoeuvres works, there is a threat to take the matter up with the head of your department, or the firm's executive committee, or both. You reply, "But you have nothing at stake in the proposed mark; there is no use of it. Come back tomorrow with three alternatives. I am sure that we will be able to find a mark that can be reasonably cleared." Sometimes this advice is accepted, but sometimes it is rejected: "Just go ahead and file the mark."
I have long sought cogent explanations why clients resist what appears to be advice that is in the client's best trade mark interests. After all, there is an unlimited number of potential alternatives and the client has not generated any goodwill in the proposed mark. Despite this, there may be roughly objective reasons for the client's behaviour. Perhaps coming up with another name that is acceptable within the organization is not as straightforward as it might seem. Perhaps there is simply too little time to come up with an alternative name (selection of a trade mark not being the kind of decision that is usually made well before the results of the decision are to become operative). Perhaps rejection of the proposed name has internal political ramifications for the parties within the company who have proposed the mark.
But, for this Kat, the reason(s) why clients tend to push back on an unfavourable search report, even though there is little or no objective downside to the client's accepting your advice, seem to more psychological in nature. One way to view it is to say that the client has irrationally "fallen in love with its trade mark." While there is a metaphorical attraction to this characterization, it still seems analytically unsatisfying. Perhaps a more compelling way to view the matter is by reference to the concept of the "endowment effect" as developed within the field of behavioural economics by such scholars as the Nobel Laureate Professor Daniel Kahneman of Princeton University here (and his frequent collaborator, the late Professor Amos Tversky here), Professor Richard Thaler of the University of Chicago here, and Professor Dan Ariely of Duke University here.
A pithy description of the "endowment effect" (I believe that Professor Thaler coined the term) states as follows: "Simply put, the endowment effect says that once you own something you start to place a higher value on it than others would" (Montier 2010, p. 194).
Seen in this light, there is a bit of solace for this Kat as he once again gnashes his teeth in discussing his search results with the client. While this process is unpleasant, at least this Kat has the feeling that he is not alone.
More on the endowment effect here, here and here.