A Sharp Stick in the Eye of Trademark Law?

By Mark McKenna

Over at his interesting blog (which Mark Schultz plugged a little while back), Grant McCracken has a post discussing modern marketing practices in terms of their “roundness” or “sharpness.” He suggests that all marketing used to be round, by which he means that there could only be one unique and relatively straightforward selling proposition for a brand. He suggests that things have changed, and that consumers now crave sharper marketing – we want marketers to leave some manageable amount of pattern detection to us as consumers. He has several examples of rounded versus sharpened marketing, and the one that resonated most with me was Wayne Newton versus Cirque du Soleil (though Microsoft vs. Google was pretty good too).

I’m not qualified to analyze McCracken’s post from a marketing and/or anthropological perspective, but it got me wondering. He seems to be suggesting that consumers don’t want such straightforward, clean understandings of brands. That is, at some level, a remarkable observation if it is in fact true as a general proposition. Trademark law has acted for the last 50 years on exactly the opposite assumption.

The tools of modern trademark law increasingly operate for the purpose of allowing a mark owner to manage the meaning of its brand. Think about it – dilution law is all about allowing the owner of a brand to create a singular, clean meaning for its brand. It’s for Disney to remain special to Mark Schultz in the same way it was special to him as a kid, and specifically to prevent anyone else from interfering with that simple and immediate reaction.

I’ve mentioned before, probably too often, how trademark law makes all kinds of assumptions about consumer behavior that are based on zero empirical data. If McCracken is right in his assessment of what consumers want from brands, shouldn’t trademark law account for that? I’m not completely sure I know how radically it should change as a result, but it seems to me that this ought to be a fertile ground for further study. I’d be curious to know what my co-bloggers think about this.

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