Part I: An Apertif
Imagine you work at IP-World. Today is the annual office Christmas party (no, you cannot get out of it).
They are all going to be there: ‘The Big Four plus the one known simply as The One’; colloquially ‘the4plusthe1’. These admittedly rather descriptive if not clumsy designations comprise: Copyright Law, Design Law, Patent Law and Trademark Law, plus IP Sage. In light of Brexit, this year’s party is delayed and moved to Denmark for happiness reasons. You are politely informed the season of Danish julefrokost (literally ‘Christmas lunch’) is already underway in November and staggers on to January, and it is not unusual for people to partner several julefrokost during this festive phase. How liberating you think.
You stand at the entrance to the IP-World party (again): a delightful work canteen (again); a joyful night full of joy and joyfulness beckons (again). Hold on. Just hold on. You are in Denmark where cynicism is punishable by a smiling sentence. The party ‘shall be hygge’ the Danes say. How intriguing.
Hygge more or less means ‘comfy cosy fun’. Hygge is a theory and practice of what and how it is to function as a happy individual and society. It has a known role and appears simple and accessible, but is not easily defined with no literal translation in English. Hygge is so very Danish; it could be something that ‘insiders’ get, whereas ‘outsiders’ do not get it.At the canteen door, two minutes to go. You shall get hygge. You can do it: recall moments of clarity when IP-World was a positive and uplifting experience. Promptly it is 6pm on the dot; you are in Denmark after all. You step inside the canteen. It is pitch black outside and not much brighter inside: minimalist invention and aesthetics accompany the barely audible pulse of seasonal sounds. So evidently understated (and you are so evidently the last person to arrive). So very Danish.
You immediately mark out the regulars, highly distinctive are they even with a dimmed and distant view. The Big Four have (clearly) been at it for a while with their respective gang in tow. It is well-known at IP-World that gangs of The Big Four members are loyal and they do not get each other; others don’t get it either. This has created misunderstanding inside and outside IP-World.
You scan the room: …Copyright Law (+CopyrightCrew) desperate to get mixing on the decks of steel in the DJ hot seat; Design Law (+DesignDetachment)looking, err, well …designed; Patent Law (+PatentPosse) merged in an almost unified swagger; Trademark Law (+TrademarkTroop) keeping itself to itself; and The One sitting solemnly, soaking it up. Business as usual. How comforting.
Some hours later...
The julefrokost continues its epic and gruelling format. It must be nearly done…
Next to you is Trademark Law, distinctly colourful and buoyant by now. Trademark Law has gone through several costumes matching the courses of the marathon meal (are you being served karrysild (‘curried herring’)?) Starting off the evening in an inconspicuous outfit straight from daily IP-World, into a ‘Friday-at-work’ dress code, then an exclusive tailored suit, Trademark Law has progressed to ‘Professional Brand-Man’: a sort of specialist superhero. This latest incarnation – as Trademark Law hurriedly assures you – is not meant to be sexist, and is meant to represent the self-proclaimed champion of market economies and companies and consumers and everyone and… everywhere. Blimey.
The current get-up is something of a look-a-like mishmash of A-list crusaders both real and functional fictional. Recognised trademarks plaster every inch of Trademark Law’s persona and it looks ready to open ‘The Inaugural Hungry Games’:
(As Trademark Lobby describes it) a futuristic blunderbuss of Binge Buy-day in a sort of Olympics Games 2.0 meets FRIFA World Cup meets SuperBowelSuperstore, all via an interactive live feed on 2FaceBook. Heavens above…By now, TrademarkTroop have, err, trooped over and hover on the coattails of Trademark Law’s costume. You see ‘Captain-Consumer’ with ‘Private-Purchaser’ and ‘End-User’ in tow, ‘Captain-Company’ followed closely by ‘Brigadier-Big-Business’ and ‘Sergeant-Small-Business’, and ‘Major-General-Market’. Also, ‘TRIPs-Trooper’ with a barely visible upper and lower section of their uniform; it is fairly worn but looks like it says ‘rade’ (should that be ‘trade’?) and ‘development’.
Trademark and Troop are out-of-sync with their day-to-day existence. Far from their usual unfussy, unobtrusive selves they are noisy, attention-grabbing and incoherent. Is it the atmosphere, the mix music (thanks +CopyrightCrew), the hygge, or is it the snaps?
You have become wary of the innocuous enough looking snaps – sipping (and no longer gulping) the diminutive clear servings of this fiery ice-cold beverage and in respectful alignment to the toasts (13 and counting). A Swedish colleague eagerly informs those within earshot that the Danes love toasts almost as much as snaps, which they consume at Christmas and Easter, and midsummer, and midwinter, and um, well any ‘occasion’ really, like lunch.Thinking about the transformation of Trademark Law, maybe The One’s trademark maxim is true: “All IPKats are grey in the dark”. The others of IP-World seem to be acting as their ‘normal’ selves, just louder and less sure of their footing. You spot the (we own the place) strut from Patent and Posse (still not unified). That’s certainly normal.
So what’s the ‘real’ Trademark Law? Is it this party behaviour or the ‘normal’ day-to-day behaviour? Perhaps there is more to Trademark Law than meets the eye. Or that Trademark and Troop are lightweights?
Well, the lighting has been dimmed right down, and you are almost in the dark now. You find a hygge chair and fall into it... Exhausted. Confused. Blurred vision.
Trademark Law comes over intently as if wanting to whisper something to you. Unsolicited comes the whisper bellow, “The thing is that Trademark Law – that is to say me, my namesake, or is it yours truly? – uh, what we call Trademark Law and what we mean by uh, trademark law, is in fact a complex and vital and complicated and essential… err, thing.” Fairly articulate given the circumstances; but accurate? Trademark Law continues:
“I am misunder
(And motioning an arm to the Troops)
“We are misunderstood…”
The chorus of Troops nod, chorus-like, mouthing “It is true” in muted orchestra. You catch yourself nodding. It is almost as if they have all been here before. Have you been here before?
“I see…” you belatedly say still nodding (except you do not of course see (anything really)).
“Except you do not.”
“Uh… Excuse me?”
“No. You do not see. Not at all. How can you? To be perfectly honest with you – I think I can be – I am not really slur I understand it myself, or even understand it (i.e. myself). It is like I keep going round in circles chasing my own tail.”
“Oh dear.” (And who actually says “open brackets i.e. close brackets” out loud?)
Come to think of it…
“Err, do you have a tail?”
“I meant on the costume.”
“Oh I see. I mean I don’t see. Um…”
The dark Danish night is taking its toll. The soul-searching continues.
“I am infused with genuine intellectual perplexities… you know like…, … and fraught with fragilities and conceptualities and... not enthused… But how could you possibly understand?
You deduce that was meant rhetorically.
(You deduced correctly.)
“How could anyone understand or know what it feels like to be Trademark Law? What does Patent Law know! Even The One has been ignoring me.” With that, an awkward silence. Even the music had stopped.
You like Trademark Law. Always have done. But you do not seem to know Trademark Law. Trademark Law fell back into the adjacent chair; Resignation? Indignation?
This was getting heavy for your liking (where is hygge when you need it?). You spot The One heading to the balcony. Must be a good viewpoint up there, and a chance to get some fresh air. You head over.
To be continued here at SSRN ....