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In the most recent edition of Innovation, the IDSA's magazine, an article(100K PDF) by James Conley got my interest. The subtitle is "Using Brand Identity to Reinforce Market Value," but the real point of the article is about how the basic elements of experience can be legally coralled and restricted as a form of competitive leverage. The importance of this is summarized in this key point:
If used properly, marks, unlike patents or copyrights, never expire. Registered design elements that serve as a brand foundation are therefore indefinite forms of competitive advantage.
Towards the end of the article he says:
Without the proactive management of intellectual property, the innovator’s ability to build and/or sustain market value is compromised. Designers who know how to legally encode a unique product differentiation and/or cognitive touch-point will have a strong competitive advantage.
This is all saying that our legal current system is so set up that ever-more specific sensory phenomena can become the property of organizations forever. And when "forever" and "property" are used in the same sentence, you know there's going to be trouble. My first thought about this related to an observation from a couple of years ago: digital technology has made color reproduction much more accurate, allowing designers much finer control over the exact color used in a product...and a much more consistent way of establishing ownership of a color. Old logos had to be in a relatively limited set of colors both because mass color reproduction technology was limited and because variability in printing technology made it much harder to insure consistency in a color. Coke own "red" (not a specific shade of red) partially because red is easy to reproduce. Pepsi owns "blue" for the same reason. It's not surprising that Tab Cola, which uses magenta as its signature color, was founded the year after Pantone: by the early 60s, color reproduction had probably gotten to the point that companies could use more subtle shades, and Pantone saw the need to standardize that capability. Since Pantone and, especially, since digital reproduction arrived in the 80s and 90s, accurate color reproduction has come to dominate the design world.
And now intellectual property theorists such as Conley, and lawyers, especially ones at technology and design-savvy companies with lots of money (read: phone companies) have realized that this is fresh, under-regulated ground for claiming territory (i.e. competitive advantage). Conley references T-Mobile's cease-and-desist complaint that made Intel change their Centrino logo to be less "magenta" (because both are in the "mobile" space, even though that makes no sense if you think about the context of use) and Orange's lawyers, who tried easyMobile to stop using orange in their advertising, despite easyMobile's reationship to easyJet, who are clearly very orange.
You can see this shift in large design-savvy companies already: DHL changed their logo colors to include the yellow of Deutsche Post, but also to differentiate itself from FedEx, who are quietly claiming more and more color territory. You can also see this with moving trucks: Ryder, Penske and Hertz used to all have yellow trucks; Budget had white. Ryder went to white. Budget went to blue in response. Hertz is moving to orange (I think). Penske gets to keep yellow, maybe.
I predict that soon, because there is no regulation in this market and ownership apparently forever, there will be major color wars to register colors for specific industries and uses and masses of litigation about color infringement, all created by the fidelity of color reproduction.
Now here comes the chilling part. Conley describes extending these ideas to other senses:
Beyond the world of static shape and form, Yamaha has succeeded in registering a stream of water as the unique source identifier for the Wave Runner line of personal watercraft. That’s right, that silly, rooster-tail shaped jet that fires up off the back of the unit when you crank the throttle is a registered trademark. This water stream is the monopoly source identifier of Yamaha’s Wave Runner and cannot be found on competing products from Polaris or Seadoo.[...]
Midwest Biologicals Inc. has registered the scent of bubblegum as a source identifier on its machining oil and metal-cutting fluids.
[...]
Akzo-Novel’s subsidiary Organon is now attempting to register an orange flavor as a trademark in the market for pharmaceutical antidepressants.
I'll leave the consequences of a logical conclusion to this line of thought to the reader.
