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Saturday, 12 December 2015

Houston, we have an IP problem: when the elite media gets it wrong


This Kat begins by recalling once again Jeremy Phillip’s valedictory admonition about the inability of the media to understand IP. The media is the
gatekeeper by which IP reaches the public. All of us in the IP community should be concerned, then, when the media gets it wrong. And in 2015, no one in the elite print media seems to have got it more wrong than The Economist. Having misconceived the patent system in its cover story of August 8th (see IPKat discuss this here and here), it has now gone after the current state of corporate names in its October 24th issue (the Schumpeter column entitled “Nine billion company names”, with the by-line, “[b]usinesses are coming up with ever-sillier ways to identify themselves”). Here as well, the IP discussion can only be described as muddled and misguided.

Nothing better encapsulates this than the following paragraph from the column--

“Companies are right to devote a lot of effort to thinking up names: they are the best chance of making a good first impression. Great names such as Google can provide the ultimate bonus of turning into a verb. Dismal ones like Monday (briefly the name of a consultancy) can cast a pall. But overcrowding is only one reason why finding a name is becoming more difficult. Globalisation has increased the possibility of giving offence in one language or another. Copyright law is a pain: companies have to go to great lengths to make sure that nobody has staked a claim to their favourite names. The biggest culprit is the internet: companies put a premium on finding convenient “domain names” that direct you to their websites, but many of the good ones have already been grabbed by name speculators.”


So let’s catalogue what’s wrong in this paragraph:

1. Companies may or may not devote a lot of time to coming up with a company name, but they don’t do it on the basis of making a good first impression. A company name is not like a consumer staple on the shelf of your local grocery nor is it like a blind date, where first impressions matter. It is the staying power of a name over time that is important.

2. There is nothing inherent in either the Google or Monday names, whereby one is necessarily great and the other is not; indeed, the reader has no idea what determines “good” and “bad”. Calling Google a great name is so very easy to do post facto, but if the company had gone the way of the likes of Alta Vista, it would have been a mere historical curiosity. We are told that the name Alphabet for Google’s holding company is “clever” (does this mean “good” or something else?), though we are not explained why this is so, and there are plenty who disagree.

3. The so-called problem of “overcrowding” is non-existent. There has been, and remains, a virtually inexhaustible pool of potential company names. True, there are only a limited number of generic names, but at least company names, unlike trademarks, can make use of generic words. In any event, one does not get the sense that generic names are the issue but rather so-called “good” names. Deciding whether or not a name ex ante is good or bad is a fool's game.

4. Similarly, the claim that “many of the good” domain names have already been taken is wholly misplaced—unless the intention is registration of a generic term. But, as noted above, there is no hint in the column that the problem of finding “good” company names is stifled by a lack of “good” available generic names. Nor are so-called speculators, whatever that means, the reason that a company cannot come up with a new company name that can also be registered as a domain name.

5. But surely the most puzzling part of the paragraph is the assertion that “[c]opyright law is a pain: companies have to go to great lengths to make sure that nobody has staked a claim to their favourite names.” Copyright law may indeed be a pain, especially if you are a potential infringer, but copyright has nothing to do with protecting rights in a name. Maybe The Economist confuses “copyright” with “trademarks”, maybe it mistakenly believes that copyright is at issue regarding company names. Either way, it is simply difficult to fathom how the sentence found its way into the final version of the column.

The IP misunderstandings contained in this paragraph are so fundamental that they suggest to this Kat that the time has come for IP associations, such as AIPPI and INTA, to set the monitoring of the media’s mistreatment of IP as a high priority. What is called for is education; when the elite media gets IP wrong, it needs to be corrected. It’s that simple.

9 comments:

Peter Ulrich said...

..."the ultimate bonus of turning into a verb" is probably something else companies would like to avoid...

Meldrew said...

Self quotation is one of the smaller sins.

To quote my comment to this earlier Economist article on patents

It is rare that the word "ignorant" can be applied to an Economist article, but somehow whenever IP law is the topic, that is the word that comes most readily to hand.

'nuff said

Yegor Gaidar said...

I agree with Peter Ulrich - in fact, that was the most concerning part of the extract from The Economist.

For example, you could say "Twitter" is a clever name (whatever that means), like Google, but you just have to see their IPO filing to see that they are concerned that "Tweet", etc. may become generic.

THE US anon said...

Yegor,

Not to pick nits (I do get what you are saying, and agree), but Twitter and "tweet" is actually not a great example. Such will not bring about genericide.

Google and "googled" is an example that will bring about genericide.

Ron said...

Regular BBC Radio 4 listeners may have heard its daily "Tweet of the day" feature, consisting of a few seconds of the song, call, or twittering of a particular type of bird, and commentary on the bird in question.

A Nonni Mouse said...

@Ron

Only if you are up really, really early. Is it making it available to the public if no one hears it?

Gilman Grundy said...

My hand-waving, overly-generalised assessment of why the media has a problem with IP (and vice-versa):

1) The US makes us look bad, many articles on the subject of IP are written entirely from the viewpoint of how it works in the US, even in European/Asian press, and the profession outside the US doesn't do enough to distinguish itself from the US.

2) Only ridiculous decisions ever draw attention. About the nearest patenting ever gets to positive press is from shows like Dragon's Den.

3) The software industry as a whole is massively anti-IP, which is pretty silly given how much they rely on it. Work in a software firm and you'll know why - the level of education about IP is practically zero.

4) Somehow social engineering through the granting of state-mandated monopolies are seen as a tool of capitalism by the left, whilst identified as a petti-fogging restriction on business by many on the right. There's not really much outreach from the profession to either side of the debate (or even its middle).

5) It really is very complicated. I'm not going to blame some Economist journo for not knowing that copyright and trademarks are two totally separate things when in layman's discussions they are used practically interchangeably, any more than I'd blame Jeremy and the Kats for not knowing what the specific differences are between inflation measured by CPI, RPI, and CPIH. However, I can't remember seeing much input from actual professionals in these articles - perhaps the media are partly to blame for this, but if the journalists who write these articles had a patent/trademark professional on speed-dial who was good for a quote they'd use them.

Moan about media ignorance all you want - the people you're moaning at have practically no contact with the patent/trademark profession and the people who then can most easily contact (and who give the best copy) are anti-IP activists.

Meldrew said...

Gilman Grundy

Great analysis, however I fear you are too forgiving of journalists, particularly journalists from the Economist. My opinion [and I have strong ones] is as follows.

It is acceptable (although not desirable) for someone who has no contact with IP and no need for IP to have no knowledge of IP: as soon as such a person recognises they have a need for IP (often too late, but "shit happens"), then there is plenty of accessible information to guide them. Once told that they cannot patent the copyright of the design in their trademark the lesson (sometimes loosely) sticks.

However, it is not acceptable for someone with no knowledge and less judgement to spread their ignorance around the world masquerading as informed opinion.

As someone who has regularly read the Economist for over 30 years [most of its opinions are comforting to me, even if some jar - and the cartoons are good] I have been aware that often the opinions have been light on supporting facts. It is when it gets to IP that this ignorance becomes glaring.

To understand the peculiar organ that is the Economist, it is perhaps worth looking at their "About us" page, where it states:-

A recent editor, Rupert Pennant-Rea, once described The Economist as “a Friday viewspaper, where the readers, with higher than average incomes, better than average minds but with less than average time [flatterers], can test their opinions against ours. We try to tell the world about the world, to persuade the expert and reach the amateur, with an injection of opinion and argument.” [Arrogant or what?]

In other words, never mind the paucity of facts, the Economist has plenty of opinion. [Lots of opinion, good cartoons, all they are missing is soft porn to get the full complement of their fellow red tops (so far they have stuck with reviews of soft porn - see November 14th-20th edition)].

Now it is not uncommon for the strongest opinion to accompany the least knowledge [I confess to a weakness in this area, especially after a few drinks], but for journalists this weakness appears to be a badge of pride; even for journalists on an organ whose self image is stated as "The Economist considers itself the enemy of privilege, pomposity and predictability".

Well I am sorry, the pompous pontifications of the Economist on IP are becoming tiresomely predictable, and they do not have the privilege of being exempt from criticism because they consider themselves a cut above other newspapers.

The Economist has a policy of anonymity for their articles, and this is stated to be because "The main reason for anonymity, however, is a belief that what is written is more important than who writes it". It is of course also a defence for Economist journalists seeking another job - no matter how ignorant the pontification, it is the viewspaper that gets called to account, not the journalist.

It is interesting to note from the Economists "About us" page that Kim Philby was a contributor to the Economist: perhaps spreading damaging opinions under cover of anonymity is nothing new.

Yours vituperatively and opinionatedly, [and regretfully so far as my favourite reading is concerned]

Meldrew

THE US anon said...

Overall, I cannot improve on your post, as your view is dead nuts on.

Your point 3) is explained by the notion of "the march of the lemmings."

For all of their "professed" independence, the plain fact of the matter is that the overwhelming majority of software coders are NOT so risk-tolerant (nor creative) as to be able to strike out on their own and innovate.

The overwhelming bulk majority would rather "follow," collect their paycheck, dither about what they are told are the so-called "EVILS" of patents and merely COPY elements of the creativity of others.

Not only is there a paucity of real IP understanding, not only is that vacuum filled with the rhetoric that benefits MOST those small overlords in charge of the lemmings, the lemmings have been SO conditioned to "think" (in truth, parrot) the "lemming speak as if that lemming speak were some great individual banner of personal liberty.

I have NEVER in my life seen such a class of intelligent people LACK critical thinking skills.

I envision the movie "The Matrix," and a whole legion of Cyphers who would rather knowingly be plugged into a fantasy world, then deal with the coldness of reality.

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