On Trademark

Sarah Palin has trademarked her name. The former Alaskan governor turned Fox News commentator, Going Rogue author, TLC reality star and SarahPAC founder – wait, do I really have to tell you who Sarah Palin is? – submitted an application to the U.S. Patent and Trademark Office that is due to be approved within the next few weeks. When it is, Palin’s name will be trademarked for “educational and entertainment services” as well as “motivational speaking services in the field of politics, culture, business and values,” according to her patent applications. Her daughter Bristol, 20, has also trademarked her name for motivational speaking, but in the field of “life choices.”

“Essentially what they are doing is trying to commercialize themselves,” says Neil Friedman, a New York trademark attorney. It’s rare for politicians to trademark their names, but Palin left office in 2009 and has since become a successful media and entertainment figure. She has trademarked her name the way someone like Calvin Klein might trademark his.

Though trademark is part of IP, I generally tend to ignore it because it has very little in common with patent and copyright. Patent and trademark are concerned with ideas while trademark is primarily concerned with identification.

As such, the need for trademark is mostly due to Incidentally, trademark is more useful for corporations than individuals because a corporate entity is abstract and contextual whereas an individual entity is concrete and absolute.As such, the need for trademark is mostly due to the market distortion of the corporate entity , which occurs because corporations are not generally identified with specific individuals.

The theory behind trademark is that brands need to be able to distinguish themselves from their rivals, and their ability to distinguish themselves is essential to ensuring the market performs efficiently. This sounds good, but it is predicated on a fallacy: namely, it is assumed that people “own” their reputation. The idea is that businesses must be able to protect their reputation in order to serve consumers properly. Businesses must, then, be able to prevent others from claiming to be them when they really aren’t, especially when fakers are offering shoddy products.

But this assumption is false because one’s reputation consists of what other people think. To own one’s reputation requires one to police other people’s thoughts and/or actions. This presents a conflict of rights that cannot be resolved. This, in turn, indicates that one cannot own one’s reputation, and cannot therefore use the law to force others to think a certain way.

This further means, getting back to the topic at hand, that Sarah Palin’s attempt to trademark her name is nothing short of ludicrous. In the first place, the trademark system as a whole is predicated on a fallacy, and so any action attempting to make use of the system is likewise predicated on the same fallacy. (And isn’t it interesting that Sarah Palin is attempting to make use of a system that allows her to exercise some measure of control over what people say about her?)

In the second place, Sarah doesn’t really need to trademark her name. Unlike a corporation, she is a concrete entity, which means that consumers will be able to tell quite easily whether it is, in fact, Sarah Palin that is speaking at a conference (this is the relevant metric since her trademark is to be used in the context of public speaking and appearances). As such, she really has no need to trademark herself since she is already easily and unmistakably identifiable.