Measuring Trade Marks

"Easy and cheap” is one way to describe trade marks.  The researchers at last week's Workshop on Empirical Studies of Trade Mark Data at the University of Oxford used such scholarly terms to discuss the growing field of empirical research into trade marks.  Like patents and other IP, trade marks are up for an evidence-based analysis.

We started the day with Philipp Schautschick and Christine Greenhalgh, who looked at 60 empirical paper on trade marks.  This alone was surprising as they didn’t expect to find so many papers on the subject.  Much of the literature looks at trade marks registrations as a proxy for innovation.   Trade marks seem to be particularly important indicators of innovation in the service sector.

We waited for the Sorting Hat

Your Katanomist was very excited by a paper from Stefan Bechtold and Catherine Tucker which harnesses the vast amounts of data offered by the internet.  They analysed the search results and search behaviour of the top 100 brands before and after Google allowed trademark usage in AdWords (September 2010) in Europe.  The results suggest that the use of registered trade marks had very little effect on the search experience of users – which in and of itself is very interesting.  Are we getting too worked up about online use of trade marks?

Lisa Larrimore Ouellette, researcher and blogger, presented her tantalisingly entitled paper, “The Google Shortcut to Trademark Law." Her claim was that organic results from Google and other online search engines are highly probative in traditional offline trade mark infringement disputes. In 88 cases over one year, Google and courts generally agree; where they disagree, Ouellette argues that the court generally misunderstood how consumers perceive the mark.  Again, evidence appears to be an important term.

A trio of American academics, Chris Buccafusco, Christopher Sprigman and Barton Beebe presented a methodologically interesting paper looking at experimental methods into trade mark dilution. An economic argument in favour of trade marks is that it reduces search costs.  An experiment into this, by the rock-band-sounding-team Maureen Morrin and Jacob Jacoby, found that there is some cost in dilution (it takes a subject 150 milliseconds longer to recognise that Heineken popcorn is not associated with Heineken than if they are told this explicitly.)  However, very strong brands are typically immune to this dilution.   The American academics proposed that more experimental research be done to better understand search costs and the effects of dilution.

There was a lot of discussion on the soon-to-be published USPTO trade mark data.  There is already quite a bit available but a less user-friendly format. The idea is that this data, and other types of empirical research, will lead to better evidence-based policy.   Alan Marco, economist from the USPTO, assured the workshop that research-friendly files would be available shortly.  It seems that all IP offices are heading in this direction, but it make take some time.

Tony Clayton presented the curious uptick in trade mark applications in the last few years at the UK IPO.  With the economic downturn, we would expect trade mark registrations to decrease; instead they appear to be increasing in the UK, in OHIM and perhaps elsewhere. Why might this be the case? [Merpel notes that the Katonomist may be asking this in anticipation of her future work.] 

Valentine Millot and Patrick Llerena, from Strausburg, reported on the relationship between trade marks and patents.  Are they complements or substitutes?  The results are, “it depends.”  The characteristics of the market determine which (complement or substitute) is more dominant.  For the pharmaceuticals & chemicals industries, the researchers find in favour of complementarity because the brand works alongside the patent.   For computers and electrical industries, the evidence is in favour of substitutability.   Products in this sector depreciate rapidly (short-life cycle) and technology is not well codified, so patents and trademarks may be substitutes.

Edible branding

In a rare topic, Andrew Griffiths presented on trade marks and Business Models and the idea that the Alternative Business Structure (ABS) will impact the business model for legal service providers.   The idea of "Tesco law" suggests that that there will be a greater reliance on branding than on regulation and personal relationships. This may spur innovation across the legal services. Griffiths argued that the legal services business model will shift from variable pricing to more predictable pricing and potentially a retail chain model.

Trolling by another name? Christian Helmers and Carsten Fink presented on trademark squatters using evidence from Chile.  Trade mark squatting is the registration of a trademark on a product, service or trading name (including commercial and industrial establishments) that is marketed by another company that has invested in the goodwill associated with that mark.  An obvious example is the registration of internet domains.  There are some prominent cases, such as Starbucks in Russia, but is this the tip of the iceberg?  The authors identified squatters in the Chilean register and found that textiles and pharmaceuticals are by far the most popular classes for this behaviour.  However, squatters were strangely absent in the legal services classification. [Merpel notes that the lawyers's reputations may precede them...]

The event brought together economists, lawyers and policy makers - doing our best to understand each other. Best quip of the day came from legal scholar Lionel Bently, on some phrasing in an economics paper, “When you say a ‘simple difference in differences’ model, I’m very pleased by the word ‘simple’ and thereafter not so pleased.”

Disclosure: As announced yesterday, the Katonomist will be working for the UK IPO from January; the views reflected here are her own.