The Problem with the Pinkertons

So stick to your guns, and don’t let the Pinkertons take you alive.

Recently, the security company that owns the IP attached to the vernarable complicated and tarnished name of Pinkerton decided to send a cease and desist letter to Rockstar games requesting payment for use of their name in Red Dead Redemption 2. Take-Two, the publisher of the game, has since countersued the Pinkerton Consulting & Investigations, which is owned by Securitas AB, for attempting to infringe upon its freedom of speech.

To me what’s so interesting about this story is not a company attempting to profit, again, off the popularity of a name, but the fact that the United States intellectual property systems essentially allow companies to feel that it is there right to squeeze profits from their IP’s no matter how old or cultural significant. This is the unfortunate issue brought up by this case that will not go any where and will result in a loss for the Pinkertons.

Issues at Play

Some of the major issues at play with this case revolve trademark law, and it seems that the Pinkertons aren’t happy with the view of the Pinkertons as exhibited by the game. The issues with trademarks:

  • Trademarks can last forever as long as those marks are continually used in Commerce
  • Trademark law gives companies a lot of power to protest the use of words, often very common words (See Beer Trademarks)

Essentially, a company can make an effort at commerce and then keep up some sort of activity. They then secure the rights to that ip almost in perpetuity. Things that can be trademarked include:

  • Names
  • Phrases
  • Some Colors
  • Images (Arbitrary and fanciful trademarks) 

What can’t be trademark:

  • Terms and phrases that enter common usage
  • Descriptive and generic terms

What’s at stake

For large companies involved with these types of suits, usually, there are not any stakes. They’ll sue and either have the cases dismissed or settle out of court. The problem comes up with smaller comes run afoul of these IP issues the stakes are very high. They maybe forced to rework names or branding, or simply have to cancel projects as a result of a suit or trademark complaint.

Now archivist should heed this case as well, as more companies turn to their trademarks as a revenue stream, archivist may be impacted by exhibiting, displaying or providing online access to records that may portray these brands in bad lights if a brand decides to sue or utilize a legal mechanism to an archives change course. Why might this happen? Experience has taught me that archives are typically extremely risk-averse organizations, and the mere threat of legal action usually has an archive, or their counsel, back away from their right and responsibilities.

So stick to your guns, and don’t the let Pinkertons take you alive.

Follow Up Reading

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