trademark wars -- corporations and publics on the web

Thursday, April 12, 2001
5:00 - 7:00 p.m.
Bartos Theater
MIT Media Lab
20 Ames Street


Digital environments enable practices that promise to transform corporate/consumer relations. These practices undermine the traditional power of companies to control their images and manage their imagery. At the same time these new practices create conditions permitting consumers to challenge the commodity fetishism on which the corporate persona as an asset relies. The World Wide Web gives members of the digitally connected public new capacities to evade their positions as mere consumers of corporate imagery, providing technological means and social and cultural conditions for consumers to transform the commodity signs of mass culture into popular culture and to create a popular legal culture in the process. As the struggles to control the meaning of corporate trademarks indicates, a system of proprietary control, dominant under modern conditions of mass marketing, is being transformed into something more dynamic and ethically complicated, a digital public sphere in which consumers are not passive and corporations are forced to be newly accountable.

Rosemary Coombe
is the author of The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (Duke University Press, 1998) and numerous articles in legal theory, cultural anthropology and cultural studies. She is working on a book about the globalization of intellectual property issues. She was appointed in 2001 to the Canada Research Chair in Law, Communication and Cultural Studies at York University where she is a Professor in the Faculty of Arts. Coombe earned a combined doctorate in law and anthropology from Stanford University in 1992.  

Andrew Herman is the author of The ‘Better Angels’ of Capitalism: Rhetoric, Narrative and Moral Identity Among Men of the American Upper Class (Westview, 1998) and co-editor of The World Wide Web and Contemporary Cultural Theory: Magic, Metaphor and Power (Routledge, 2000). A professor at Drake University, Herman received his Ph.D. from Boston College.


ROSEMARY COOMBE and ANDREW HERMAN said the traditional system of trademark and proprietary control governed by unidirectional rules of advertising and mass marketing is being transformed in digital space into a more dynamic, discursive process. This transformation is made clear in battles over online uses of intellectual property and trademarks and struggles over Internet domain names.

Reading from their paper, "Defending Toy Dolls and Maneuvering Toy Soldiers: Trademarks, Consumer Politics and Corporate Accountability on the World Wide Web," Coombe and Herman analyzed these changing dynamics, citing recent examples of the cycle of corporate action and fan response.

Barbie Doll maker Mattel Corporation was called one of the most vociferous and energetic of corporate censors in cyberspace for its attempts to shut down Barbie collectors' websites and to usurp the collector community by offering officially licensed dolls for sale. In another instance, adult entertainer Barbie Doll Benson, who has used the Barbie Doll stage name for 16 years, received Mattel's complaints only after she produced a website.

Another site hit with Mattel's legal wrath was The Distorted Barbie, dedicated to the Barbie icon's semiotics and deconstruction. Artist Mark Napier altered the famous doll's face and Mattel sent a cease-and-desist letter to Napier's Internet service provider (ISP) who put pressure on the artist to strip the altered images from his site. A website called was mentioned as a warehouse of information in reaction to the Barbie trademark wars.

Coombe and Herman cited Michael Strangelove who argues that corporate capacity to maintain monopolies over the flow of symbols is severely compromised in digital contexts. Mattel is simply incapable of suppressing every redefined image of Barbie in cyberspace, they said, and Strangelove's thesis is borne out by the dozens of Barbie images, satires, parodies and commentaries that are now available on the web.

Pointing out that fan subcultures put great value on autonomous creativity, Coombe and Andrew discussed the digital phenomenon of "cyberbullying." A recent example involved action taken by Warner Brothers against two 15 year-old girls for registering homemade Harry Potter fan sites with URLs that contained the Harry Potter name. When the controversy spawned a website devoted to managing and coordinating the response against Warner Brothers, the company retreated and ended up waiving its normal licensing fee.

In fact, controversies over trademarks and domain names have created new web communities devoted to recording these activities. Calling these communities "counterpublics that archive corporate cultural power tactics," Coombe and Herman pointed to several websites that track domain name disputes and their resolutions including, the Disputed Domain Names directory, and Dan Tobias' Political and Controversial website.

HENRY JENKINS, director of Comparative Media Studies, MIT, responded by comparing the encounters taking place on the Internet to those depicted in the futuristic television show Max Headroom from the mid 1980s. In that show, corporations used technological advances to gain more and more control of consumers, while at the same time armies of resistance transformed the new technology into tools for challenging corporate power, a common theme in cyberpunk fiction.

We are seeing this cycle of cooptation and appropriation today with corporate marketing efforts on the web, the grassroots creation of websites that criticize, monitor and parody corporations, and the resultant battles over intellectual property as described by Coombe and Herman.

One model that emerges from this collision of cultural forces is that the new technology enables grassroots archiving, appropriation, transformation, remaking and recirculation of corporate symbols and media icons. The full range of digital tools from PhotoShop to camcorders give people the power to make media, and the web has given people channels of distribution that grassroots movements did not have in the past.

The collision course of tight corporate control of intellectual property and grassroots share-ware models of cultural production will define how many rights we have as consumers, and what rights we will have in the future to challenge the dominant culture. The Napster case is just foreplay for a series of legal battles we will see unfold over the next decade.

It's an interesting paradox that the whole system works to ensure an opposition between consumer and capital interests. The sites that are most vulnerable to being shut down are fan sites that endorse a product and encourage its consumption, while parody sites that are most clearly protected as political speech are critical of the product.

The irony is that the fans receive cease-and-desist orders and that antagonizes them and destroys so-called goodwill. As a result, the fans become more and more critical of the company and their content becomes more and more protected as political speech. It's a machine that encourages antagonism and the breakdown of goodwill and encourages critical thinking about corporate control.

Furthermore, this occurs at the moment when companies are using relationship and viral marketing models and to attract and retain consumers. More and more trademarks are sold on t-shirts. High school kids are told 'wear this symbol on your backpack, put it on your locker, but don't put it on your website.' That line is a very arbitrary one for the consumer.

So, companies thinking about bonding with consumers are using legal tactics that create an antagonistic relationship, and it reaches the point where it is a trademark war rather than the collaboration and relationship marketing that was envisioned by some for the new digital age.

It is like Max Headroom, and we are seeing some vivid examples of the kind of antagonism that emerges at this moment of media change and cultural conflict.


HUGH GUSTERSON, Professor of Anthropology and Science, Technology and Society, MIT: I am struck by the coincidence in time of these copyright debates and what's happening with genetic information. For example, there is a surgeon who took out a patent on a patient's genes, and Monsanto is trying to take out a patent on a form of rice that has been used for centuries. Could you talk about the deeper cultural logic that might link what's happening in biology and what's happening online? My sense from watching these biology cases is that the companies are winning much more easily than you have been describing here.

COOMBE: I think there is a deeper cultural logic based of a peculiar western understanding of authorship as a singular act. Trademark law does not account for the fact that the value of signifiers comes from the way they are shared in a cultural context. That is, the value comes from the ways they are shared in social fields - linguistic value and meaning is created in social contexts. In law, any meaning of the sign is attributed to the author and any meaning imbued to the symbol is seen as the result of the actions of the author.

Couple this narrow understanding of authorship with the fact that a corporation is considered an individual in the law and anything that is public domain can be turned into an item of propriety control. In genetics and the biotech area, these companies are taking their own activities of isolating and purifying something and gaining ownership to methods and techniques that have been know for years by other peoples. The claims of biopiracy have been to some extent overstated - I have learned you can't believe everything that every nongovernmental organization tells you - but there is something going on there, and the NGOs are catching on.

Indigenous peoples are now making the case that ecosystems are created by authorial communities and are making their own proprietary claims on biodiversity as authorial creations by collective authors. Digital technology has played two important roles in this. First of all, because of the Internet, it is much easier for Third and Fourth and Fifth World peoples to find out when corporations are exploiting their knowledge, and, secondly, it is easier for peoples to put their own collective knowledge into digital form, display it and lay claim to it. This involves more and more objectification of culture, but that's the terrain we're traveling.

WILLIAM URICCHIO, Professor of Comparative Media Studies, MIT: It is clear that activist have a quick learning curve, but what's the debate in the legal community? Just go out and zap'em, or is it more nuanced? Are lawyers refining their strategies?

COOMBE: There are lawyers on both sides. Not all the lawyers are protecting corporations. But, most of the legal debates are about what's the best way of protecting the corporation. At first, in-house corporate counsel was protecting the corporation's interests without thinking about the bigger public relations picture.

This is changing: people are increasingly looking for law firms that have relationships with PR firms, and there is an emerging group of lawyers that absolutely loves defending these cases. The ACLU has become more involved.

FRED HAPGOOD: If we look down the road, the cost of prosecuting these cases around the globe will go up and up and up. Are we talking about anything real, or is this all going to be squashed? Imagine trying to write cease-and-desist letters to server farms in India, where they'll be ignored. There's a real issue here of cost, right?


HAPGOOD: Essentially, then, this is all over. It's got about five more years. No one is going to be able to control these trademarks once the jurisdictional environment swings against them.

COOMBE: Well, we are seeing the emergence of supranational arbitration systems that allow corporate domain holders to bypass court systems in individual countries. The actual governance of domain names is being taken out of local, regional and national hands and being administered at an international level.

SUSAN SILBEY, visiting scholar, Anthropology: Can you say more about these new forms of governance that are operating?

HERMAN: In terms of regulation, there are proper ways of controlling the Internet, and that's what ICANN is increasingly about: maintaining strict control over domain names and dispensing them carefully is a way to designate space on the Internet. Governance in its broadest sense, however, is not just regulation and the organization of digital information, but includes other forms of conduct.

COOMBE:Yes, there are long discussions on these websites about the nature of civil disobedience and what it will look like in this new environment. Where are the digital spaces for protest activities? When a store is acting bad toward employees, or breaking environmental laws, what do we do? We picket and protest. But, should we close down a website just as we would picket a store? Why should a virtual site get more protection than bricks and mortar? There are debates about governance, and how to be a good digital citizen.

The digital environment does create greater capacities to comment on corporate conduct. The fiction of goodwill has been a fiction for quite a long time, and digital media allow activists, citizens, and employees to reveal the lie.

SILBEY: What do you think about MIT putting all of its courses on the web?

HERMAN: It affects the property and propriety of many people in this room. How many people here actually teach courses on the web? Well, I do too. There are debates as to who owns the content of these courses? It does call into question the status of the intellectual workers at the university as laborers.

COOMBE: Legally, employees never own the right to the intellectual property they create while employed. So, what they create does belong to their employer.

DAVID THORBURN, Professor of Literature, MIT: Doesn't that make an assumption that professors are typical employees? It is not at all obvious that professors are employees of the university. Many of us fought battles against university administrations establishing that it is a different kind of community. There have been some cases where professors could not sue a university because they were considered the governance of the university.

COOMBE: I may have made a cultural assumption. They are all public institutions in Canada.

INGRID VOLKMER, visiting scholar, CMS: I am teaching online for the New School in New York, and I have those concerns. What happens to my courseware? What happens to the content of my courses? But, there are other issues as well. During a web search, I found an article of mine that was published in Greece without me knowing it. That's one issue.

Also, I am commuting to Europe a lot and in America this discussion is all about copyright and Napster. In Europe, it's about free speech, and it's about politically extreme content on the web. The discussion in Europe is more about content providers and their liability and responsibility on the web. I think that in Europe the media including the Internet is seen more as a cultural product or space, and not so much as a commercial space as it is in this country.

Now, the European Union is trying to create an equivalent to American-like copyright laws. This is the first step to synchronize global content flow, the trade of information services in the web. And I have a feeling this synchronization of copyright law gives protection to the commercial side in industrialized nations without regard for the cultural side.

COOMBE: Yes, intellectual property questions now have become questions of trade rather than culture and communications. That means creating global and legal friction-free space where capital can be exchanged. The discourse is all about free trade, but in fact the Third World is supposed to trade its goods as goods while the First World protects its major products as monopolies. How that creates a level playing field is not at all clear. Part of the move to treat biological diversity as intellectual property is a response to this logic.

One can make big claims about American cultural hegemony. One can ask, for example, why the American copyright industry was allowed almost single-handedly to transform intellectual property into a matter of trade with the Trips Agreement? But it might be a better question to ask why America exported its strong intellectual property protections, but not the rich exemptions that Americans enjoy such as fair use defense of copyrighted materials.

As a result, people now realize what political stakes are involved in the expansion of intellectual property rights. By creating international laws and agreements, you can avoid all questions of freedom of speech and expression. The First Amendment of the U.S. Constitution is not exported along with the laws. The Constitution, after all, is a local ordinance.

VIRGINIA EUBANKS, R.P.I.: Once you get past the first scary lawyer letter, how effective have these lawsuits really been in protecting corporate rights? The primary cease-and-desist letter costs 34 cents and shuts some people down. But when these cases get to trial, the companies look bad.

COOMBE: You may be underestimating the chilling effect these letters have, and the tactics are now shifting. In the beginning, the letters would go to website administrators and they'd shut down. As people have begun to share these letters, the so-called outlaw sites have become more emboldened. Because on the web you can post the cease-and-desist letter and you can engage in a shaming of the corporation, fewer administrators are backing down in the face of a cease-and-desist letter alone. Now companies are sending cease-and-desist letters to the Internet service provider (ISP) and those people tend to be more conservative when it comes to legal threats. Maybe over time that level of operator will become more and more emboldened as well.

The situation doesn't look as grim as it did two years ago. Still, we do come across more and more broken links and "this page cannot be found," notices as we do our research.


Defending Toy Dolls and Maneuvering Toy Soldiers: Trademarks, Consumer Politics, and Corporate Accountability on the World Wide Web by Rosemary J. Coombe and Andrew Herman

[This paper was delivered at the MIT Communications Forum Trademark Wars -- Corporations and Publics on the Web on April 12, 2001]