Marketers and trademark attorneys must read Professor James Conley's article Trademarks, Not Patents: The real competitive advantage of the Apple iPod.
Here's an excerpt:
Our findings overwhelmingly support the conventional wisdom that design decisions cast a big shadow on the commercial success of the product over its lifecycle. But more recently, we have found that some firms know how to build brand identity through great design, and they understand how to leverage and secure critical design elements and cognitive touch points [shape, color and sound] of the user experience through non-traditional marks. In the process, they build strong, transferable brand identity throughout the product lifecycle that can be leveraged in future offerings.
This has led us to consider the possibility that the cognitive touch points of the user experience can be reconciled—and secured or monopolized—as unique brand elements through non-traditional marks. Marks, unlike patents or copyrights, never expire if used properly. Registered design elements that serve as a brand foundation are therefore indefinite forms of competitive advantage.
One minor beef with the article is that it seems to imply that trademark registration is the basis for protection. For example, Professor Conely says "to be clear, Apple's trademark, if successfully registered, will not give them the kind of functional invention or ornamental exclusivity that one gets with of a patent." As we well know however, trademark rights are obtained through use.
Regardless, I found the article well written and informative. It illustrates nicely how a company can employ the different forms of intellectual property to their competitive advantage.
See also Professor Conley's Intellectual Property Strategy and Value Articulation presentation to the Management Circle Patente 2005.
Technorati Tags: trademark, registration, non-traditional marks, design, competitive advantage, cognitive touch points, value articulation, Professor James Conley, patents, intellectual property, Kellogg Center for Research in Technology and Innovation