For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Friday, 28 February 2014

Trade marks as a geopolitical matter: read on

Popular discourse about trade marks does not seem to have the same political and ethical engagement as do patents and copyright (when is the last time that any Kat reader said to himself—“trade marks are a geopolitical matter”). Patent trolls and their claimed harmful effects on innovation have become the subject of extensive (hysterical?) attention by legislators and bureaucrats, including the President of the United States, here. Similarly, copyright has become intertwined with both legislative and judicial disputes about the appropriateness and application of net neutrality, here. For sure, trade marks have been challenged since the dawn of their legislation in the 19th century through to capitalism-skeptic attacks in our own time (think Naomi Klein and No Logo, here) on the ground that trade marks do not create anything of social value but merely enable wealth transfer from duped consumers to greedy brand owners. But such challenges, especially of the modern variety, have been limited for the most part to academics and intellectuals. Except for the issue of the marking of cigarettes,here,this Kat is hard-pressed to recall the last time that trade marks were the focus of passionate (or other) public debate.

But two recent articles in the January 11, 2014 issue of The Economist served as a reminder for this Kat that this notion of the quiescent geopolitical role of trade marks is not quite so. The first article, “Seat belt, mirrors, brake”, discusses the uneven progress to a more open mark economy in Cuba (“the road to capitalism does not run smooth”), here. While the focus of the piece is on the dubious relaxing of restrictions regarding the right to purchase “modern” cars, attention is also devoted to the nascent market for reselling clothes imported from abroad. An elementary expression of a free-market-in-the-making, one might think. And one would be wrong, because on January 1, 2014, President Raúl Castro issued a law that bans such import and resale of clothing, which had apparently become a thriving business as a form of “tailor and dressmaker”, the trade of which was permitted as a private occupation only in 2011. What happened is that budding entrepreneurs construed “tailor and dressmaker ” to mean stocking up small local stores with brands from the United States, Europe and elsewhere. But no more--even if the right of Cubans to travel abroad has been relaxed, the ability to leverage such trips for entrepreneurial purposes has for the moment come to an end. So the likes of Eva, a 27-year old, will no longer be making bi-monthly trips to Madrid to bring back quantities of branded fashions for resale in Havana.

The second report, “Bruised, blooded and probably broken”,here, describes the current governmental crackdowns in Cambodia against expressions of dissent. One of the major centers of dissent has come from garment workers. Viral videos are reported to show violent repression of the authorities against such demonstrators. Against this tragic backdrop, it appears that the brand-holders whose garments and the like are being made in Cambodia—such as Levi Strauss, Puma and Gap, are reconsidering their presence in the country. This is no trifling matter for the economy of Cambodia—these foreign brandholders purchased over $5 billion dollars’ worth of finished garments last year, and the economic activity of the garment industry in Cambodia constitutes nearly one-third of the country’s entire annual budget.

From the trade mark perspective, what do we make of these events? Having regard to the Cuban situation, first we are reminded of the attraction and power of Western brands. Unless we assume that purchasers in Cuba have been especially “duped” in this regard, the conclusion is that they, like consumers elsewhere, find the message of branded goods to be of a compelling one. This Kat reckons that the apparent purpose of allowing the privatization of “tailor and dressmaker” occupation was driven by concerns for encouraging limited self-employment and perhaps an improvement in product quality, neither of which is served by enabling Western brands to be resold in the country. What this Kat wonders is, now that foreign clothing brands may longer be flogged in small fashion stores, whether the authorities will allow one of these tailor and dressmaker enterprises to develop a local Cuban clothing brand. Is it Western brands, or the notion of brands at all, that so frightens the Cuban government?

As for Cambodia, the response of foreign brand-holders in the local economy is reminiscent of reports that came out of Bangladesh after over 1,000 workers died in a factory fire last year, here. The dilemma faced by these brand-holders is especially challenging. Protesting government violence to its own people by pulling out of Cambodia market will do direct harm not only to the public coffers of Cambodia, but more immediately and importantly to the employees who will have lost their means of livelihood. How many countries can these brand-holders abandon before there will be none, or virtually none, which do not pose various forms of this same moral dilemma (especially when the price of the branded merchandise will then increase in a notable amount back home)?

Having regard to these two events, the question for this Kat more generally is whether those engaged in trade mark practice, either at the practitioner, corporate or organizational level, should be more engaged about the geopolitical aspects of trade marks and branding, and the moral and ethical issues that they raise.

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