Previously on Antigenerictrademark.com (which in this context will fulfill a temporary literary role as a soap opera), we chronicled the drama that is the debate over protection of culturally significant buildings from the unfair “encroachment” of camera-wielding tourists. The plot unfolds something like this: buildings, as pieces of practical artwork, meticulously designed to evoke a visual aura, are seen by designers as sculptural works, to be protected by copyright against profiteering infringers who exploit the creativity of someone else. But the wrinkle in giving copyright protection to buildings is that a copyright, being a monopoly, would seem to rob society of its fullest enjoyment of the work (including tourists, photographers, and others); their motive may not be to exploit the design of the building itself but instead is a contribution of something original themselves, which happens to incorporate the visual representation of the building. The evil antagonist in all of this are the over-zealous rights holders who seek to contort the essence of copyright to extend to the protection of something beyond merely the design of the building: the symbolism of the building and its renowned. After all, who cares if you take photos of some obscure office park and use the pictures in your own soap opera drama?
The issue of association between certain symbols and a particular source is, of course, the essence of trademark law. The logic of protecting symbols used by an owner to allow consumers to identify the source of their goods and services is fairly straightforward: we protect the associations that consumers make when they see a symbol in the marketplace. It helps promote fair competition, but it is also a way to protect consumers and prevent purchase decisions based on misinformation (such as a counterfeit mark). The logic is that if a symbol is associated with one source, consumers will receive goods or services that meet the level of quality that have always been associated with that symbol.
Can any type of symbol function as a trademark? Certainly. After all, the statutory language is fairly broad in what a person can use to identify their wares: “any word, name, symbol, or device, or any combination thereof” just so long as the symbol actually identifies and distinguishes the goods. The words identify and distinguish go to the ability of consumers to associate a product with a source. What good is a symbol if it can’t identify the source of goods?