• Starfish and Spiders

    by  • March 22, 2009 • trademark

    I’ve been reading The Starfish and the Spider. The premise of the book is that some organizations are centralized and top-down, which is the spider – you cut the head off and it dies. But there are decentralized, non-hierarchical organizations that are like a starfish – if you cut it in half, it becomes two starfish. The book talks about a number of organizations that are “starfish” organizations, like Alcoholics Anonymous, the Animal Liberation Front, Al Qaeda, and Burning Man. If the heads – or even substantial parts – of these organizations are cut off, the organization will live on. That’s why Al Qaeda is so difficult to vanquish, each cell works independently.

    There is one striking sentence about starfish organizations: “Many unaffiliated groups simply take the brand and use it.” It gives as one example Alcoholics Anonymous – AA is unified by the twelve steps, not any formal organizational structure. Anyone can start an AA chapter.

    This means that the marks of starfish organizations are more susceptible to attack. Traditional trademark doctrine ties the existence of a mark to having control over the quality of the goods and services with which a mark is used – or, more correctly, it ties the abandonment of a mark to the absence of control. But this concept of centralized control is a poor fit for the starfish organizations, which are nevertheless identified by trademarks and, as shown from the above examples, sometimes even famous ones.

    These organization have some commonality that unites them and provides their marks with sole source significance, but perhaps just not the kind of control that traditional trademark law is looking for. Instead, there’s a whole range of behavior that keeps this organizations unified. This Boston Globe article says that Osama bin Laden decides what groups may call themselves “Al Qaeda,” refusing permission to Zarqawi in Iraq until he became less publicly brutal. Some organizations are self-policed by the members, like Wikipedia.

    The only question on trademark validity should be whether the word, logo, device, etc., functions as an identifier, and in the above organizations there’s no doubt it does. In a starfish organization it may prove difficult to decide who has the right to use the mark, or who has the right to enforce the mark, but that’s a different question from whether there is a trademark in the first place.

    Maybe it doesn’t matter. Per the authors, citing Alcoholics Anonymous as an example, the downfall of a starfish is the acquisition of property. “Once people gain a right to property, be it cows or book royalties, they quickly seek out a centralized system to protect their interest. . . . The moment you introduce property rights into the equation everything changes: the starfish organization turns into a spider.”

    © 2009 Pamela Chestek