The objectivity of the law
A number of accounts of brands stress their role as a mark of ownership or badge intended to create trust in the consumer as a guarantor of the quality of particular products through the identification of an origin.
And certainly there are grounds to support this view. This is the notion of the brand as a badge of origin. Thus trade mark law is acknowledged to have historically been a means to secure a monopoly on the use of that mark with the dual purpose of protecting the owner from unfair competition and the consumer from ‘confusion’ as to the origin of the good. As such, trade mark is a form of intellectual property right that has historically been asserted by manufacturers of products. Importantly, although the law has long accepted that the ‘origin function’ can include selection as well as manufacture, in many respects the notion of an origin for a product or service is increasingly difficult to sustain (see Lury 2004, for further discussion of this argument). There are a number of shifts - partial and uneven but significant nonetheless - that are relevant here.First, a number of recent cases (for example, Sabel BVv. Puma AG, Rudolf Dassler Sport, 1998) suggest that the law is responding to changes in the organisation of production such that the product is recognised to be constituted in a process (although see below for the important limit to this). That is, it seems that the law is willing to recognise and provide protection for goods that are marked by a sign whose distinctiveness is not intrinsic to the mark as such. Rather, the distinctiveness of the sign recognised in law as a trade mark is held to be perceived by the consumer in a process of ‘global appreciation’, that is, in the relations between the mark and the sign and the goods and services established in the course of trade. This ‘course’ is explicitly recognised in law to be a dynamic, fluid or global process.
Or to put this another way, the activity of the course of trade that is the basis of the claim to the property rights at issue cannot be broken down by the law into discrete stages; rather the converse. The very distinctiveness of the goods themselves is held to be a function of the channels - in which is included packaging (such as jars) and the shelving in supermarkets - via which they are distributed. In this respect, the law may be seen to acknowledge a process of production in which a product is neverThe objectivity of the brand 189 simply identical with itself, but is transformed as it is brought to market or is marketed. As will be discussed later, there are limits to the legal recognition of this non-identical product. Nevertheless, the thing that is the foundation of property rights is recognised to be realised in a process of production that occurs in time through the structuring of the market. In other words, in current legal reasoning, the thing that is the object of the claim is not described as a discrete entity whose nature may be fixed or attributed to a clearly identifiable point of origin. Instead, the course of trade is understood as an activity of bringing something to market, an activity in which the thing is not fixed, but is globally distributed or in process.
Secondly, there has been a shift in the basis on which the range of goods and services that a trade mark may take as its object is legally adjudicated. Until recently, the originator of a mark was unlikely to be able to control the use of a mark in relation to products in different trade classifications of goods, since it was held that there was unlikely to be confusion as to the origin of trade. However, following the so-called Ninja Turtles case (Mirage Studios v. Counter-Feat Clothing, 1991), the application of a mark across classes of goods can now be prevented by the originator of the sign, under the law of passing off, if that originator has a business selling the right to use the sign.
In this case, the plaintiffs licensed the reproduction of fictitious cartoon characters, the ‘Teenage Mutant Ninja Turtles’, but did not manufacture any goods themselves. The defendant made drawings of turtle characters using the concept but not copying the plaintiff’s drawings, and licensed them for use on clothing. The plaintiff sued for copyright infringement and passing off. The court held that there was a case to answer in passing off on the grounds that the public would be aware of the licensing industry and would assume a connection between the plaintiff and the defendant. This shift thus secures legitimacy in law for the more or less unlimited transference of the sign so fundamental to licensing and the associated practice of merchandising. It seems to indicate an internal reversal within trade mark law: ‘While unfair competition law is based on the prohibition against palming off one’s goods as the goods of another, licensing itself is essentially a “passing off”’ (Gaines 1991: 214). In according property rights in trade mark on these changing terms then, the law acknowledges that marketing is of increasing importance to the economy and secures recognition of a thing-in-process as an incentive for innovation and as a medium of competition. In short, the law provides support for the exclusive ownership and exploitation of the brand as an abstract, indeterminate and dynamic thing.