The prejudices of complexity

Of course, neither marketers nor the law can be held entirely responsible for the new role (and commercial success) of brands. That the adoption of this marketing framework was to prove so effective is in large part a consequence of its relation to other changes in the production process, notably those changes associated with flexible specialisation (Harvey 1990; Lash and Urry 1996; Castells 1996).

Put more radically, the practices of marketing help produce a new object: an object that is produced in and as probabilistic, transductive and global relations between products (or services). In other words, marketing provides the conditions for the emergence of a thing of possibility, an object of manageable flexibility; it is a matter of indeterminacy within limits.

However, the opportunity to realise the possibilities of this abstract object are unevenly distributed and poorly realised. While the brand has the potential as a complex object to bring ‘an understanding of the outside, of society, economy and customer, to the inside of the organization and to make it the foundation for strategy and policy’ (Drucker, quoted in Mitchell 2001: 77), its possibilities are often not acknowledged. The interface of the brand typically organises the interaction between ‘producer’ and ‘consumer’ in profoundly unequal and asymmetrical ways and the brand as it is protected by trade mark law is the basis for the growth of legally protected monopolies that restrict opportunities for competition by other companies. In short, while exerting a profound influence on the social and political organisation of the work process, the objectivity of the brand does not often extend the possibilities for action (Barry 2001). The situation remains much as it did when Levitt called for a marketing revolution in 1960:

When it comes to the marketing concept today, a solid stone wall often seems to separate word and deed. In spite of the best intentions and energetic efforts of many highly able people, the effective implementation of the marketing concept has generally eluded them.

(quoted in Mitchell, 2001: 77)

Moreover, while I have suggested that the activity embedded in the thing that is the object of trade mark law is recognised to be a process in which something is brought to market, the legal representation of this activity is also uneven. Case law acknowledges the activities of many of those involved in the qualification- requalification of products, explicitly including market researchers, but only minimally acknowledges the activities of consumers.

In this regard, consider a ruling relating to the opposition of the name Rysta as a mark to indicate that a company had repaired second-hand stockings by an invisible mending process (Aristoc v.

The objectivity of the brand 195 before they are offered for sale to the public’ (in Cornish 1999: 464). It is this ‘before’ that indicates not simply the partiality but also the prejudice of the legal representation of consumer activity, since it implies that the dynamic or global process of bringing something to market is brought to culmination or fixed at the moment of sale. To put this another way, while the distinctiveness of the object before sale is not fixed at any particular stage or moment in time in legal thinking but established in dynamic relations between stages, such dynamism is halted at the moment of sale. Any activity which occurs after sale is typically recognised to be discrete (i.e. separable from other stages of activity and from the thing itself). The activities of the consumer are not recognised to be constitutive of its distinctiveness. The implication is that they do not contribute to the improvement of the object or resource in Lockean terms; they are insufficiently objective - or objectifying - for the law in this respect.

Consider also the case of British Sugar v. James Robertson (1996), in which Jacob J. seeks to answer the question as to whether a product is a jam or a ‘dessert sauce or syrup’. British Sugar produced a large number of sugar-related products under the general mark, ‘Silver Spoon’. One of these was a syrup-topping for ice cream and other desserts which they marketed as ‘Silver Spoon Treat’ in toffee and other flavours. They also registered ‘treat’ for dessert sauce and syrups. They brought a case for infringement againstJames Robertson, the well-known jam manufacturer, for their product ‘Robertson’s Toffee Treat’, a toffee-flavoured spread. In considering whether the Robertson product did indeed fall within the specification of goods for which the mark is registered - one condition required in law to establish infringement - Jacob J. notes that the plaintiff, British Sugar, themselves describe the relevant product as a dessert sauce or syrup. Thus, the small print on the back of the jar says:

Toffee Treat is delicious at breakfast, with desserts or as a snack anytime. Spread Toffee Treat on bread, toast or biscuits, spoon it over yoghurt or ice­cream or use as filling for cakes.

Jacob J. continues in his representation of the plaintiff’s case:

So, say British Sugar, the product can not only be used on a dessert, but Robertson’s positively suggest this. Thus, even if the product has other uses, it is, inter alia, used on desserts.... It does not matter if... other uses are much commoner: the fact that the product can be used as a dessert sauce means it is one.

(in Cornish 1999: 471)

Jacob J. disagrees with this view: ‘I reject this argument’. A number of reasons are given for this rejection. These include the fact the use of the spread with dessert is judged likely to be slight, and here he cites an estimate that: ‘all potential uses of the product, other than as a spread, amounted to less than five per cent of the volume’. He further argues that while even jam can also be used as a dessert and

‘everyone knows and sometimes does that’, no-one would describe jam as a ‘dessert sauce’ in ‘ordinary parlance’.

Supermarkets regard the product as a spread. Thejam jar invites use as a spread. When it comes to construing a word used in a trade mark specification, one is concerned with how the product is, as a practical matter, regarded for the purposes of trade. After all a trade mark specification is concerned with use in trade. The Robertson product is not, for the purpose of trade, a dessert sauce.

(in Cornish 1999: 471)

In short,JacobJ. thinks that the use of ‘treat’ causes the plaintiff no harm, because ‘by and large one is not in practice a substitute for the other’. That something has the potential to be used as another product would be (or has potential uses that everyone knows and sometimes does), does not, in this ruling, mean that it is the other product or indeed that it is sufficiently similar to it to be substitutable. But the trial of substitutability in real practice, as advocated here, is a much cruder qualification trial than that staged by marketing. In marketing, it is precisely the staging of the possible uses of something that produces the (emergent) object of the brand at the level of the market, not a majority of real uses in practice. In short, the trial of the object in the law courts does not produce the same something that is produced in the qualification trials of marketing; in respect to consumer activities at least, the legal object is a matter of the real rather than of the possible.

This discrepancy between objectivity in the law and in marketing is revealing for what it suggests about the respective representation of consumer activities. It might be seen to suggest that marketing provides a more adequate (a more just) representation of the objective activities of the consumer than the law. But this is not so. On the one hand, marketers explicitly acknowledge the value of consumer activities in the building of brands. On the other hand, trade mark holders are explicitly advised by marketers to be wary of acknowledging the activities of consumers as objective.

A trade mark is an adjective. It is not a noun and it is not a verb. It should always be used in print as an adjective qualifying a noun or noun phrase. The noun or noun phrase which the trade mark adjective must qualify is of course the generic name for the product.

(Blackett 1998: 60-1)

This ruling is deemed necessary by marketers since the property rights acquired by registration of a trade mark can be lost in those legal cases in which consumer activities are - exceptionally - held to be objectifying. In a judgement often referred to as genericide, it is legally established that if a trade mark becomes the generic name for the thing itself, then the trade mark owner loses exclusive rights to the mark (Coombe 1998; see also Gaines 1991). Examples of words that started off

The objectivity of the brand 197 their lives as trade marks but now have lost their status as private property include gramophone, zip, tabloid and escalator. Other marks, while still registered, are frequently thought of by the public as being common names, for example Biro, Thermos, and Cellophane. In these and other cases then, trade mark owners are advised by marketers that they must continually watch to ensure that brand and genre remain distinct if they wish to continue to assert property rights. In the terms of the genericide ruling, it seems that the law is willing to recognise the thing that is the object of a property right as brought into being in consumer activity This is because it is common or generic, that is, it is not merely a potential use that everyone knows but only sometimes does, but a real use that everyone does. But with this ruling in mind, marketers insist that what they produce is merely an adjective, a qualification of something that exists in its own right, independently of the trials of either the law or marketing. It thus reverts to a notion of objectivity in which the possible is a mere may-be.

In sum, what has been argued here is that the brand is an object that is both dynamic and indeterminate; it is an abstract machine for product differentiation; it is an artefact that adapts through continuous feed-back and feed-forward. In ideal typical terms, the peculiar objectivity of the brand enables the communication of information relating to a continuously evolving multi-dimensional system, including its ability to mutate in time (Kwinter 2001: 47). That this ideal is even conceivable is a consequence of the increasing role of information in the co­ordination and conduct of the processes of production. That is, it is a consequence of the use of technologies and logics that act on the generation and processing of information, resulting in significantly extended scales of organisation, much more rapid processes of circulation, and a new centrality of information to processes and products (Castells 1996). But the possibility introduced into the economy in this way is only partially realised. In particular, it has been argued here that the qualification trials of both law and marketing are such as to produce not simply a partial but a prejudiced objectivity. That is, the object produced in these trials, especially as they relate to substitutability of products, is dependent on, but does not recognise, the activities of consumers.