Knowing nothing of the inextricable complexity of the human administration it was flying into, the fly entered through the vent of the workstation’s fan. It slipped into the depths of the circuitboard, causing a single-bit error in the index of the Reference Legal Archive. The intern in charge of proof-reading felt that something was different, but could not pinpoint exactly what. The fully automated computer system had corrected any inconsistency in paragraph numbering. When the updated text of the law was sent to all executive forces., nobody noticed that an entire section had been erased.
In Terry Gilliam’s 1975 film Brazil, a fly gets jammed in the apparatus of a dystopian bureaucratic administration, creating an error which serves as a starting point for the entire story. As our legal systems become increasingly bureaucratic and complicated, it is a fun exercise to think about what could happen if a small modification was randomly introduced into the law, as a mutation in the genome of society. Certain mutations would have no effect, some would lead to the rapid collapse of civilization, and, who knows, some might even be beneficial.
But there is one simple mutation – a deletion of single legal concept – that I believe has the potential to make our society much better in the long run. I am talking about trademarks, and I will explain why I think they should be abandoned. There has been a lot of debate about whether patents or copyright should be abolished, but even anti-patent and anti-copyright activists like the Pirate Party’s founder Rick Falkvinge or the GNU guru Richard Stallman think trademarks are a good thing. This is how far out the Overton Window we are going. Well, I don’t actually think that they should be just erased at once – I am aware that trademarks, by design or by accident, serve all kinds of roles in our current societies, so we couldn’t abolish them just like that, without carefully planning how these roles would be filled instead. But you already know the arguments in favor of the status quo. Rather, I am just going to present the radical idea of abolishing trademarks in a one-sided way, with the hope to make you question whether trademarks are as natural, necessary and optimal as they appear to people who are used to them.
“Thank you for coming to this emergency meeting. As you may know, we are facing a problem without precedent. Since this morning, a second Coca-Cola company has entered the market. The first batches are already reaching retail stores as I’m talking.
– A second Coca-Cola company? How so?
– Another Coca-Cola. The same as ours. Identical product, same packaging, same logo. It is just not produced by our company.
– Well, we sue them for trademark infringement, like we always do!
– This is where it gets complicated. Apparently the administration made a mistake when converting the official version of law to some obscure new technical standard. They said it was a computer bug or something, nobody knows. But the entire section about trademarks completely vanished from the law. At the moment, there is nothing we can do legally to protect our brand.
– You’re saying trademarks disappeared just like that? What the hell, don’t they have backups of the law somewhere?
– Of course they do, but you can’t just revert the law of the country to a previous version like that. That would be antidemocratic. As per constitution, the state will only enforce the standard version of the law from the Reference Legal Archive, and any correction will have to be voted. It might take weeks.”
I know the fly scenario is highly implausible in real life, but take that as a thought experiment. Let’s suspend our disbelief and assume, for the sake of the story, that all laws related to trademarks suddenly disappeared. In other words, anybody can brand their product as they want, and counterfeits are basically legal. That does not mean one can write whatever they want on the packaging – required information like ingredients, contact info or quantity are still enforced as always –, but the brand is no longer protected. Anybody can start manufacturing Coca-Cola and call it Coca-Cola.
– The marketing department just got the results from panel testing. “The One and Only Coca-Cola” did pretty bad, only 20% of the panel picked it. “The Original Coca-Cola” works much better. People are confident that we are the original one if we write that on the label.
– But we are not the original Coca-Cola, are we?
– As far as the law is concerned, we are.
– Oh right. What about the holograms?
– Bigger is better. I mean, I don’t want this to escalate out of control, but it’s increasingly clear that people are just choosing whatever package carries the largest hologram. So we designed a new, 12 cm-wide hologram. The largest on the market. Not even “Best Coca-Cola” have such big holograms.
– Actually, they’re no longer called “Best Coca-Cola”. If I remember correctly, they changed their name to “The Original Coca-Cola” last week.
This might go on for a while. Eventually, the original companies have to face the hard truth – their brands only existed as long as the State was willing to protect them. Without them, they are just one manufacturer among many others selling the same product under the same name.
But what if it is not the same product? One company might seize the opportunity to sacrifice quality and cut down the costs. To quote Rick Falkvinge: “Trademarks are basically good, as they primarily serve as consumer protection. If it says “Coca-Cola” on the can, I know that The Coca-Cola Company guarantees its quality.” I personally doubt this, and my doubts are supported by blind tests where participants taste food without knowing the brand1“Our conclusion is that brand image is the only explanation for the premium commanded by the supplier brands in the four food product markets. The consumer is paying a premium for the often intangible benefits inherent in a branded product. Only in washing-up liquid did the leading brand offer better intrinsically superior value for money.” – Davies et al., 2004..
Moreover, it’s important to separate the effect of trademarks themselves, from the effect of other regulations. As a case study, let’s look at counterfeit medicines. This is obviously a rampant problem, with about half of the pills sold online being fakes and many people dying because of it. But trademark infringement is not the root of the problem here. The factories who make counterfeit medication break the law in two different ways: first, they infringe a trademark, second, they deliver pills that do not contain the chemical mentioned on the label (or not in the right concentration). The danger of counterfeit medication comes from the latter, and has nothing to do with the trademark. Without trademarks, copycats could copy the name, the logo and the slogans, but they still couldn’t lie about the content or cGMP-compliance, which would still be enforced by law. The reputation of brands could be fully replaced by product certification, where an independent organism delivers a label if the products meets a certain standard, as it already exist for environmental impact, ethics, health, compliance to religious traditions and so forth. There are even certifications that certify certification bodies’ certification procedures. Or, you know, if everything else fails, you can just go for the cheapest product.
Of course, at this point, there are many objections that you can make about how the standards for product certification would work without trademarks. They definitely require some level of legal protection, otherwise anybody could just copy the name and logo of an existent certification but with more lenient criteria, and award it to themselves. But they shouldn’t be protected too much either, otherwise any company could have their own standard that says “manufactured in our factory at [address]” and we just re-invented trademarks. Hopefully, there is a middle ground somewhere, where labels are unique and meaningful, yet flexible enough so they can be fulfilled by any competitor entering the market. That is not going to be a clean and elegant solution, but trademarks were never clean and elegant either. If trademarks did not exist and I was arguing for introducing them, one could also come up with many loopholes and objections: what if your actual last name is McDonald and you want to start a fast-food chain? Should trademarks be transferable to other people and if so, how does that not defeat the purpose of trademarks? If not, what happens when Sir Coca-Cola, First of His Name passes away? What if I start a company called “Coca-CoIa”, where the 7th letter is a capital i instead of an L? Can I trademark an image, a sound, a smell, a taste? In practice, these issues are fixed using a ton of specific laws and jurisprudence, that legal experts must navigate to tell what is ok and what is not. Likewise, without trademarks, a new legal framework would be necessary for product certification to actually work. But why would we even get rid of trademarks?
Something in the city was not the same. You would just walk to work, as you’d been doing everyday for years, but you kept noticing things that you had never paid attention to before. A pigeon nest, a 19th century street lamp, a tree, a wrought iron balcony, the stamped pattern of a manhole. All these things had been here forever, but you could not see them, because the flashing advertisement billboards would catch all your attention.
Without trademarks, there is no point in advertising your brand, since anyone else could just use the same brand and benefit from your advertisement. And this is fortunate, because advertising is the ultimate form of evil. I talked before about how the Chinese government buys “sponsored content” in western journals to print propaganda disguised as legitimate articles. In 2016, as the New York Times distanced themselves from the less-reputable “fake news” media, they realized painfully that their own website was displaying its own fake news in the form of advertisement – like announcing the death of a celebrity who was still alive. In their classic book Manufacturing Consent, Herman and Chomsky describe how journals that rely on advertisement are pressured into printing things that favor the advertiser. That’s not to mention the attention cost of constant interruption, the mass surveillance necessary for “behavioral” advertising, the waste produced by junkmail, or the perpetuation of harmful stereotypes by commercials (although causality is contested). Without trademark protection, most of this would spontaneously disappear, making the world a much better place.
Can we really live without advertisement? The best natural experiment comes from Brazil. In 2006, the city of Saõ Paulo enacted a law called Cidade Limpa, prohibiting all outdoor billboard advertisement. In a survey more than 10 years later, the citizens had no regrets, and the majority of them wanted to keep the ban in place. Other cities have made similar (albeit milder) attempts. Of course, these legal bans might sound a tiny bit authoritarian, and one can wonder where is the safeguard between banning ads and censoring speech. In addition, these policies are not that radically effective – in São Paulo, advertisement started to appear again after a few years, in more convoluted forms, stealthily integrating itself into urban furniture. Abolishing trademarks, on the other hand, would circumvent these problems and cut brand advertisement from its roots. No ban has to be enforced – in fact, it’s not about enforcing a new law, but stopping enforcement of an old law. We remove a little piece of coercion from the state, the police no longer comes when someone infringes a trademark, and the entire advertising industry becomes unprofitable. The most brilliant computer scientists in the world can go back to doing useful things, instead of building machine-learning models for consumer tracking and targeted marketing.
“Help us bring the best content to you, for free”. The old advertisement-based media started a massive communication campaign to persuade citizens to vote trademarks back into the law. Yet, people just had a glimpse of an ad-free society, and many wondered whether they really missed the advertising giants so much.
Needless to say, all the big companies that rely on advertisement for funding would be in immediate danger. Some might try to defend the advertising industry by claiming it allows to obtain things for free. You get free search engines, free bus stops, free newspapers, what is there to complain about? This is a gargantuan scam. Let’s investigate. Internet companies like Twitter, Facebook or Google use advertisement as their primary source of revenue. This includes directly displaying ads to the consumer, as well as accumulating information about their users to sell it to third-parties. In turn, this process manipulates consumers into buying products they wouldn’t otherwise. In effect, advertisement makes you pay a premium on everyday products, and that is where the money comes from. How much is that? In the third quarter of 2020, Facebook made a bit more than $10 billions from North America only. Divide this by 255 millions users that are active monthly, you get $40 per user per quarter, that is $120 per year. And that’s the average for monthly users. If you go to Facebook daily, it will be much more. A similar calculation for Twitter gives about $20 per user and per year worldwide (like for Facebook, it may be much more if you live in a rich country). Google doesn’t disclose how many users they have, but given their worldwide revenues exceeded $160 billions in 2019, even if every 7.8 billions humans on Earth used Google (this is a lower bound) that would still be about $20 per person. Of course, it must be something like an order of magnitude higher if Google also provides your e-mails, document storage, maps, browser and so forth. Oh, and JCDecaux, the arch-evil Great Satan of public space advertising, made €3.9 billions in 2019. Now make a list of all the “free stuff” you get in your daily life (other free websites, applications, TV commercials, movie theater advertisements, sponsored content, …) and calculate the grand total. That’s an expensive free lunch.
Keep in mind this is only a fraction of the real cost of advertisement, since the companies who buy ads or data from Google et al are expecting a positive return on investment. The amount they give to advertising companies is only a lower bound to the premium they can trick consumers into paying. For example, Google claims that people who advertise with them get an average return on investment of 8-to-1. If that is true, what we previously estimated using Google’s revenues must be multiplied by eight to obtain the real cost for the consumer.
Even worse, competitors on a market are engaged in a Moloch-esque red queen race, where each company must spend more and more money on marketing just to stay in the game. Where do all these wasted resources come from, if not from the consumer’s pocket? Without advertisement, I’d speculate that companies would resort to the next best strategy instead, that is cutting prices. Hopefully, the large premium people pay for marketing would be subtracted from the price of day-to-day products.
Finally, for those who still think Internet ads are good because they support the creative class, remember that only a fraction of what you pay goes to the authors, and you would be better off with something like Patreon. As for server costs, a centralized service like Youtube might resort to paid subscription, in which case they would have to compete with decentralized, p2p-based alternatives like PeerTube which may turn out a lot cheaper. Also, when we talk about Internet Giants, we often forget that one of them never relied on ads in the first place – Wikipedia has run entirely on donations for two decades, and they did better than Google’s own attempt at making an encyclopedia.
It was a passive revolution – no plutocrat was be bereft, no king was beheaded, no parliament was burnt, no landowner was expropriated. Removing a tiny piece of legal coercion made the entire society less coercive.
In their modern form, trademarks are about 150 years old2Sumerian merchants were already marking stuff with their seals some 5000 years ago, but this worked in a pretty different way and I don’t think those merchant marks were protected by the State.. This is just old enough so nobody remembers how things worked before trademarks, and we accept them as a part of nature that’s been here forever. 150 years old is also just young enough so the long-term efffects of trademarks have not been thoroughly tested and selected for by cultural evolution. If you want to overthrow a 3000-years old tradition, you should remember Chesterton’s fence and think carefully about why it’s there and why it remained in place for so long. But 150 years old? That could just be a temporary mistake.
Omnipresent advertising is one of the things that did not go so well in our modern capitalist society. Another one is the emergence of a handful of aristocrats with an astronomical amount of financial power. These commercial empires are, to a large extent, built on the salience of their brands, itself built on advertisement, itself built on trademarks. Once we see trademarks not as something natural and necessary, but as a legal mistake of the 19th century, those empires appear to be built on very artificial foundations. If we removed them, the plutocrats would be forced to adapt, or lose their fortune. On the other side, the fall of brands would be a blessing for individual artisans and local shops. They did not rely on trademarks anyways, and they can use the now-cheap advertisement space to get known from local customers. Nevertheless, as soon as one of them grows big enough to try to advertise their brand, copycats would appear and make the brand useless. Like a rubber band, this would pull companies back to the human scale. Somehow, this echoes a point Guy Debord makes in La Société du Spectacle: “With the generalized separation of the worker and his products, every unitary view of accomplished activity and all direct personal communication among producers are lost.” A bottle of Coca-Cola is a calibrated, standard, almost abstract entity that contains no trace of the individuals who were involved in its production. While Debord sees this as an essential feature of capitalism, I would say that it’s rather a feature of brands, which act as an abstraction layer between the chain of production and the consumers.
Let’s speculate even further. Building a brand and making sure the public knows about it is a major obstacle for new companies. In post-brand capitalism, it may be much easier for newcomers to enter the market. Any company making products with good certifications, for a low enough price could readily compete with the most established industrial trusts. Monopolies would be much harder to establish, and even if someone actually manages to reach a monopoly on something, they could not make a lot of additional profit out of it because some unknown player could just enter the market under the same name as soon as they increase their prices too much. In the long run, economic inequality might even erode a little bit. That’s not too say you can’t bereave the plutocrats in addition to abolishing trademarks, if you are into this kind of things.
I guess it is time for a reality check. First, there is the problem that brand abolition is not exactly the most viable political project. That’s because the people who benefit from advertisement are precisely the ones who are in the best position to define public opinion. It might not be easy to remove something that directly benefits journalists, news sites and search engines.
Second, the obvious: if the government actually decides to store the entire law on a single computer, and if a fly actually does crash into the motherboard and erase everything about trademarks, the world would not instantly become a post-brand utopia – there would most likely be a lot of turmoil and violence and chaos and everybody would be upset at me. If this happens, you are welcome to complain in the comments. That is, if you can find the real Telescopic Turnip among the hundred copycats.