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.