When to Walk Away From a Trademark

Not long ago, word came that the venerable (i.e. old-timey and outmoded) background music service known as Muzak is no longer. At least its name has gone away. The numb- inducing background music which had bowdlerized popular music into music beds acceptable for the masses for many years has a new name-Mood.

This suggests an important function of trademarks is afoot here. Trademark attorneys speak often here about how a brand or trademark is a vessel into which all customer associations -positive or negative- are poured. What comes out of the witches brew of positive and negative associations is brand equity: what a name stands for. There are a lot of data models and even euphemisms for this, but that’s essentially what it means to be a brand.

Although trademark owners don’t always think of their marks from the consumer perspective, the trademark law was essentially the original consumer protection law. Trademark law is designed to eliminate or lessen the likelihood of confusion among consumers concerning the source or sponsorship or particular goods and services. You don’t need to know who owns the local McDonald’s– the “golden arches” tell you what you are going to get, good or bad, when a consumer stops by the store.

This same brand message relates to the Muzak situation: over time, Muzak became distinctive for background music in retail establishments, elevators and public spaces. But, along with its distinctiveness, negative associations developed. Most people who worked in office buildings from the 1960’s onward remember hearing “reimaginings” (mild super-pop re-orchestrations) of songs in the Beatles or Led Zeppelin catalog and thinking how odd it sounded. Of course, since that time, much of music is Auto-tuned, sampled and reimagined to satisfy current tastes or standards. But Muzak got tagged with the “weak substitute” descriptor and never really shook that.

In the end, name recognition did not outweigh other factors and Muzak’s owners have kept the service, but ceased the name.

For more information about trademark, copyright and other IP issues, please contact Fred Frawley at afrawley@eatonpeabody.com

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