TM Scholars' Roundable: Session 1: The Relevance of Ornamentality in Trademark Law: Acquisition of Rights

Intro, Graeme Dinwoodie

Ornamentality is undertheorized. Relationship to use as a trademark; symmetry b/t types of use that might allow acquisition of rights v. types of use that might infringe? Past issues like TM use and failure to function may appear in a new light through the lens of ornamentality. Janis & Dinwoodie were not fans of symmetry in P v. D, but ornamentality is interesting b/c it might divest you of rights, but also might help prove nonfunctionality for protection purposes. Some cases say that ornamentality can bolster secondary meaning even if it’s not enough in itself to establish rights. Also links to abandonment: what does it take to maintain use? Ornamental use may help to maintain rights even if core uses cease. Can it be used in different ways in TM as a thumb on the scale rather than a binary? 2d Cir in Descriptive fair use—how “pure” is the descriptive character of the use? Could we do something similar in ornamentality? But is the doctrine clear enough to make this a helpful consideration or will it just become part of the mud? In TM, if secondary meaning and nonsecondary meaning are entangled we often still protect the former, in contrast to © where merger often means unprotectability. [RT: I would say lots of courts in © also try to reduce merger to meaning that you can do anything but copy verbatim, which is a narrowing that many courts in TM don’t bother with, though some variants of Rogers v. Grimaldi are trending in that direction.]

How should the ornamental nature of a claimed mark affect whether such a claimed mark should be recognized as legally protectable or registerable? What is the statutory anchor for consideration of ornamentality; is there one? Does it need one?

Introduction:   Mark McKenna: This is a conversation about what it means to be a TM and what it means to use matter in a way that violates a TM right. Nothing special about ornamentality in this respect—it is that rather than being source-identifying, or in addition to that. It might be one reason that a use does not infringe. Ornamentality is denying it is used in a way that could cause confusion about source. But being informational or functional might do the same thing, as might descriptiveness. TM use: the return of the repressed. It’s always been clear to McKenna that TM use is everywhere in TM law, but almost always implicit or found in its absence. Thinking about its positive theorization is useful.

TM status: Distinctiveness is the 800 pound gorilla, especially in the US. Reflexively falls back on secondary meaning as demarcator of TM status, so we should think explicitly about distinctiveness and use as a mark. Distinctiveness=nature of mark, sort of thing that can be a mark. Use=is it in fact being used by this party as a TM. Ohio St. U’s registration for THE for clothing and other merchandise by putting THE on a hangtag. Highlights that our current thinking about use is overwhelmingly if not exclusively locational; overreliance on that reflects lack of any other way to think about use as a mark: if it’s in the right place, it’s fine.

Registration v. acquisition is also a big deal. Much of the law is a collection of rules of thumb from registration context. Lettuce Turnip the Beet: there just isn’t much nonregistration doctrine to explain why this result is intuitively correct. Hard to think coherently about TM status without thinking about registration v. use.

TM status and scope is also key: One use on a specimen gets you registration. But the registration is for THE in block letters, none of the limitations being implied, and courts are bad at scope so there’s no reason to think that enforcement will be limited to what’s on the specimen. So even if we’re persuaded on TM use we have to think about the scope of that right.

Validity and infringement relationship: plaintiffs can play games about whether what they’re doing is use as a mark and what defendants are doing. Roles of formalism and empiricism: Qs today ask about what standards we should use for ornamentality. Skeptical that standards can meaningfully be applied in ways that differentiate them in practice. Courts don’t know what primary significance means and won’t be good at primarily or merely ornamental either. But we should recognize that this is not either/or. Something is not a TM just b/c it may or does indicate source. Frequently consumer understanding is mixed, and responds to legal rules. We don’t need to and shouldn’t rely only on consumer understanding but we should also account for important competition, speech, and administrability reasons—courts are bad at managing scope. A healthy dose of formalism will recognize that there are other values, and that argues for rules (otherwise we end up pretending that consumer understanding encompasses those other values).

Jeanne Fromer: Ornamentality in her view adds nothing new in terms of acquisition of TM rights but gives us a category of symbols or uses of symbols that don’t qualify for TM protection. It can apply to any category of symbols—words, images, nontraditional categories—but may look different in each category. TMEP: inconsistent on ornamentality b/c it is really asking: how do we know what signifies source? TMEP suggests that if a mark is distinctive it’s not ornamental, and suggests the opposite in other places. It’s just incomplete. A symbol can be arbitrary/fanciful and still ornamental b/c we don’t consider it to be a mark.

Ornamentality: the context of the use makes us think it’s not serving as a source signifier even though in a different context it would or could be perceived as a mark. Pragmatics branch of linguistics. “How are you?” is interpreted differently depending on the context.

So how do we find salient aspects of context? A lot of that is about location. Aesthetic functionality would help if we could pin it down. External signifiers of other IP protection? If it’s about context, ornamentality is dynamic, and could mean different things at different times and does respond to consumer perception, which introduces a lot of confusion. [Note that incontestability would then be a potentially big problem.]

Different sizes: could affect the actual symbol itself. The THE registration was illuminating: even though there are lots of reasons not to protect THE on a T-shirt regardless of whether you put it on a tag, THE alone on a t-shirt is probably more likely to function as a mark than Lettuce Turnip the Beet or I [heart] NY b/c there’s so much less reason for it to be on a T-shirt than those things—it’s not an obviously cute slogan.

Other IP rights: utility patent creates presumption of functionality; wonders about whether presence of non-TM IP protection for ornamental features—design patent, ©--might create a presumption of mere ornamentality w/o further evidence of source signification. Might address overlapping rights, as well as concerns about failure to function. Opposite of the way that Copyright Office has been refusing registration for certain logos. Tommy Hilfiger logo: Office says it’s not original; they thought it was source indicating and therefore not ornamental enough.

Ornamentality as opposite of utilitarian functionality, which sounds like it supports TM status. But the concern here isn’t just ornamentality but mere ornamentality. The former isn’t a problem for protection, the latter is.

Allowing businesses to train consumers to think of ornamental matter as marks: there’s a race to the bottom aspect in ways that many have explored, including Lemley/McKenna in TM Spaces. Lululemon: consumers are likely to perceive it that omega symbol as a source signifier, now that LL has used it; normativity would push against allowing that to matter.

Discussant:      Dev Gangjee: Looseness of distinctiveness as a core TM feature. Things can be both ornamental and source signification. In the EU, distinctiveness is always negative: it’s proved not distinctive, not proved disctinctive. So that doesn’t lend itself to nuanced treatment. But some areas do acknowledge nonbinary status: descriptiveness. If one meaning is descriptive then it’s kept open; if acquired distinctiveness is proven then there can be protection. Disclaimers/Laura Heymann’s work in 2013: a consumer protection law approach to disclaimers about where you expect to find information.

#Darferdas: EU says that we help the applicant any way: if it is possible that it could function, then it is registrable. Hashtag for clothing; German objection: it’s most likely to be on the front of a T-shirt where it won’t function. EU says: if it is plausible that it could appear on the label, then it is inherently distinctive (unless it is “cotton” or “machine wash” etc.). That’s a nightmare. Similar result for chevrons on shoes, where the registrant’s only problem was that the depiction of the mark showed it stitched onto the shoe.

Banksy failed to register a bunch of his? artworks as TMs. Knocked out on bad faith, which is an interesting place to find an ornamentality objection. Banksy rejects © but tries to create a popup store for sales for TM purposes. Bad faith objection fails b/c never intended to use as TMs; they were widely circulated artworks; it’s always been a © and doesn’t function as a TM. Boils down to intentionality: never intended or intends to use as a mark.

Dinwoodie: what would have happened in LTTB if they had never gone to the PTO for registration? Profound question for US law. Affixation would be a way to add formalism—he thinks it’s bad but it’s an option. If you try some degree of formalism tied to ornamentality, what would it be? Other IP subject matter might be an option (EU: adds substantial value; if it could be protected by design right, then no TM—but doesn’t work well b/c anything can be protected by design now); anything else? Would it make sense to think of validity as a single question; is there enough room in the common law to bring this all together?

Barton Beebe: A sign can be distinctive but not distinctive of source. [Rock & Roll Hall of Fame case.] TM struggles with this b/c we used to insist on “distinctive of source,” but we now seem to think that being the exclusive user of a sign that is distinctive, your use will over time create exclusive rights. If semiotic value, then right. [You don’t even need time, with HONEY BADGER DON’T CARE] Formalism is totally justified as resistance to that formulation exclusive use=exclusive rights. Mere ornamentality is a way of saying “distinctive, but not of source.” We then struggle to find a way to operationalize that. #Darferdas is an example of that. GStar: similar case where exclusive use over time led to a finding of exclusive rights.

Pragmatics would be very appropriate b/c it goes to different context for distinctiveness, some of which are not distinctiveness of source but distinctiveness of something else. Banksy’s whole schtick is to create “difference” in a world of mass produced sameness.

RT: Distinctive, but not of source is a great formulation and we should use it. Rock ‘n Roll Hall of Fame v. Honey Badger don’t care. [Honestly, reviewing the difference b/t the LL logo and the piping they tried to register made the decision much more credible. That wasn’t the same symbol! So part of this is about limiting scope even when you’ve established secondary meaning.]

Can we get anywhere by thinking about situations where ornamentality could not be overcome by a change in context? Rejections for being really really long/songs can’t serve as TMs for themselves: (1) not serving TM function b/c that’s not how consumer perceptions work—TM is a shorthand. Is this likely to be used as a shorthand? [Lisa Ramsey suggests that’s merely informational] (2) Beebe’s work on signifier/signified—you have to be able to distinguish the two, the mark can’t be a symbol for itself. So you might be able to change the context by having a different signified entirely, but even then the mark probably wouldn’t be the whole song.

on TM spaces—consider possibility of “certification mark spaces” & resulting consumer protection implications

Conjoint analysis: given that you’re going to buy a smartphone, which features matter? Maybe a tool for this inquiry?

McKenna: If there’s a drop of source indication, it seems to be in now; it wasn’t always like that—technical TMs were a special category not b/c there weren’t other source signifiers but b/c there were other complications justifying two kinds of treatment. Losing that distinction was a mistake and it’s the reason we lack normative language to talk about things that aren’t marks. We should try to recover that; even some degree of source identification is not the end of the story.

Things like THE show TM’s inability to distinguish recognition of a reference from source-indicating significance. This is about recognizing and reintroducing the idea that TM is not source in the abstract, but source of these goods and services. TMs in the metaverse: TMs give you information about goods and services; something that doesn’t do that is not a TM.

Robert Burrell: Problem is we rely too much on proxies like how long, how much in sales. We need rules for ignoring those proxies. We want the use to have a certain quality.

Case study in regulatory capture: Australian TM manual—Gangjee’s concerns about Banksy but offices are in a difficult position. Person says “I promise I plan to use this as a TM.” In a system w/o specimens, what more can one do? 3d parties may challenge, but if you have 5 years in Europe or 3 years in Australia to set up your business, it’s really hard to know what else offices are supposed to do or demand.

Jennifer Davis: Banksy was absolutely clear that he wanted to register the TM to protect his anonymity and control sales even though he didn’t want to sell: honesty as bad faith!

Mike Grynberg: Two Pesos is a case of distinctiveness, but not of source: no acquired distinctiveness but inherent distinctiveness—the original sin of trade dress. Secondary meaning means different things at different times—not TM meaning but rights allocation b/c of other things going on. The law is ok giving rights to THE b/c of acquired distinctiveness of Ohio State in general/prevalence of merchandising, even though THE is not performing a proper TM function. LTTB: P doesn’t have acquired distinctiveness and trying to assert the same kind of rights that Ohio States of the world get as a matter of course. We don’t have a good way of explaining why that is. INTA LTTB amicus is very clear about this: you can’t possibly hold a registered TM holder to a high standard! Let’s stick up for the little guy! Secondary meaning (lack thereof) can’t possibly be a shield! Distinctiveness, but not of source, is a right we hand to TM owners but it’s not a TM right.

Ilanah Simon: In Europe, you can’t use overlap to police boundaries. Every figurative TM will be protected by ©/design, built into the system. W/o a registration requirement for the other right, the registration authority would also turn into the arbiter of what is protectable by ©/design rights, which is weird.

Jeremy Sheff: Overemphasis on distinctiveness to detriment of other values is related to desire for formalism. Proposal for greater symmetry: think about plain packaging regulation. Why not have it across all consumer markets? The only way you can distinguish the product is in this specific way! This doesn’t seem good, but why not? Articulating the reasons may help. Consumers react in certain ways to certain signs, and that’s ok/to be encouraged and harnessed. Then we get into not disallowing the use of signs, but regulating claims to exclusive rights. We want to tolerate certain forms of consumer behavior [and certain exploitations of those forms].

Beebe: East German TM regime encouraged colorful packages, tried not to fall further behind in the market.

Mid-Point Discussants: Jessica Silbey: Aesthetic theory has likewise struggled with categories/formalism. Aesthetics/art for its own sake spectacularly failed in trying to categorize by who did it, the genre, the context (museum/not), what it does (produces pure pleasure, expresses something about the world): all failed. Why care about formal categories in the first place? There are certain values behind the rules that require choices. Art/not art serves social, market, political purposes; in TM, ornamental/not merely ornamental requires us to be explicit about values underlying that choice.

Where else in TM are there formalistic categories we can feel confident about? Utilitarian functionality—formalism hasn’t worked perfectly but we are confident about Traffix as a rule shoveling some things into utility patent even if distinctive of source. Can we make any rules?

Rogers v. Grimaldi: artistic relevance above zero—should ornamentality above zero do something to exclusivity? Arbitrary word mark category may also count as formalistic, though maybe there’s uncertainty about that given THE and similar cases. It served us well as a clear rule.

Ornamentality might be able to draw some ideas from scenes a faire in copyright. So too with idea/expression.

Merchandising right: ornamenting the person—think about merchandising as art, enhancing the self-presentation of the person.

Jennifer Davis: After the Directive harmonizing TMs, all the law is what a TM isn’t and we have no positive definition of what a TM is. Courts have wanted to exclude registration of nonfunctioning matter, but TRIPS said that all kinds of matter is registrable, so they used distinctiveness to manage this. Came up with: Not distinctive unless diverges substantially from norms and customs of the sector in which the mark is used. No need to inquire into functionality if there is no substantial divergence. Mag-Torch and London taxicabs. Thus shape registration has been difficult through the use of distinctiveness. No need for consumer perception analysis if the court can examine what’s in the sector.

Ahsgar Ohly: Acquired distinctiveness is a possibility in the case of shapes and not a huge standard.

Davis: there are some safeguards there as well.

Simon: 2 successful showings in five years in her examination of EU, though it might be happening more at the national level (where it might be easier).

Luis Porangaba: Note that Lindt bunny case is an example where applicant had many national registrations in EU but couldn’t get an EU registration.

Ohly: may be able to obtain registrations in markets where it’s truly relevant even if can’t show acquired distinctiveness throughout EU.

Lisa Ramsey: Free expression and competitiveness considerations: large brands/celebrities can teach you to associate a weak mark w/their company can be problematic. DC/Marvel own a joint registration for SUPERHEROES for comic books/entertainment/apparel/toys. This term is really generic for a genre, but there’s the registration. Lifeguard Licensing owns registrations for LIFEGUARD for lots of goods including apparel. This would be considered arbitrary, but there’s a real competitive need for products for lifeguards. Yet the company is aggressive against anyone using that term. It’s informational/ornamental. Crystal Head vodka: celebrities promoting the skull bottle. If we want to leave certain matter in the public domain, we need to account for the ability to create de facto secondary meaning.

Although Lifeguard is using the mark on tags, it is also and primarily using the mark decoratively/informationally; this should matter to enforceability. A type of abandonment. [Or generic/aesthetic use by the TM owner.] More proof requirements for acquired distinctiveness will not help reduce the advantage of big companies.

Failure to qualify as a mark might be a way to highlight the normative components of failure to function. Could also read morality provisions in EU law in ways to acknowledge freedom of expression and freedom to compete.

Ohly: Vigeland case, where Oslo tried to register pictures of sculptures in the public domain to control the merchandising market/prevent distasteful merchandising. Is there a conflict w/© policy and what are the levers? Public morality exclusion, bad faith, ornamentality/lack of distinctiveness might be another one—German court dealt with attempted registration of MONA LISA, which was rejected by saying that ornamentality can never be overcome by context b/c its nonTM meaning will always dominate. Perhaps we should be explicit about ©’s affirmative values rather than hiding them in ornamentality.

Parallel cases: ECJ is Neuschwanstein—state of Bavaria tried to register for all goods, but the problem was not just that it was distinctive, but not of source; but that it was an attempt to control culture—same questions: is it source indicative? Should we extend TM to cultural heritage? Ornamentality is not really what mattered.

#darferdas: The German court made the point that this wasn’t TM distinctiveness but that never made it to the European court. Use as a mark turns into a defense; German courts always examine TM use; not clear whether EU application of double identity will prevent that assessment in #darferdas type cases.

Porangaba: we’re all trying to find a middle ground with different means. Registration/infringement divides—in Europe, we make allowances for registration, serving as a cautionary tale about excessive formalism. Manipulation of claim drafting, as discussed in paper by Gangjee. Registrations issued for goods related to goods for which the putative mark is functional—failure to function might be a good way to deal with that. Problem of having too much doctrine for what the registration system was conceived of as doing a century ago. Can we reframe the system without adding doctrine? Is this really a problem deserving a new doctrine? Access to registration for SMEs is an issue.

Beebe: we have very few failure to function court cases, but failure to function is spiking as a ground for refusing registration, even though too much doctrine is also an issue.

McKenna: Too much doctrine is a result of allowing too much into the TM category; now that unfair competition is also TM, we need a bunch of doctrines to deal with the fact that TMs are now not all the same and raise many different issues.

What happens in TM is now “if we have doubts, just make them show secondary meaning,” b/c we’re used to using distinctiveness as the measure of everything. Very frequently, courts do not accept longterm use/sales evidence as evidence of secondary meaning for shape/product configuration—they’re not sure that the supposed circumstantial markers of secondary meaning are correct signals. These aren’t really secondary meaning cases; the courts are suspicious that in fact the shape etc. is not being used as a mark. But secondary meaning is the one hammer that we have. It turns out to be unsatisfactory. What could the party do to persuade you that there should be protection? [Survey evidence? Evidence of widespread actual confusion?]

Jake Linford: what do we think consumers do if we create a huge prophylactic rule? Imagine it’s 1974 and we’re looking at the first Ralph Lauren polo shirt. Do we say it’s ornamental? Maybe we do. Or the first jean logo on the back of pants, or the SUPREME logo. Not sure how consumers respond. If there is hydraulic pressure from consumers, b/c consumers need shortcuts to find the products they want, then you get a situation where there’s lots of competition that’s confusion. Copyright is a bit different; not a big fan of Dastar.

Why are we more comfortable with utilitarian functionality? Seems more fixed than aesthetic functionality—things do what they do; courts and sellers may find it easier to understand when we tell them they can’t protect utilitarian functionality. Perhaps fanciful/arbitrary is like that, sending a fairly clear signal.

RT: Linford’s point on the alternate 1970s: confusion v. materiality—consumers wouldn’t be confused about whether the polo logo is on the shirt! If that’s what they sought, that’s what they’d get.

Mona Lisa: I think that’s what’s going on with rejections of the N-word in the US too. NonTM meaning can have levels of intensity too, which is not limited to being cultural touchstones though that’s a good example where nonTM meaning may be hard to overcome. A new joke may not have specific cultural history but its joke function may be hard to dislodge with TM meaning. What would recognizing that look like?  Honey Badger Don’t Care.

Silbey’s point about formalism and the category of arbitrary word marks: This is the Carol Rose crystals and mud stuff I’m going to talk about later: the arbitrary category served us well and therefore lots of people piled into the category and made it fail. Not yet mentioned: Grace McLaughlin’s note on weird marks that are completely indistinguishable from one another So the system can’t rest on its laurels; Abercrombie is not failing because it’s inherently flawed, it’s failing because it’s old and people have learned how to manipulate it.

Sheff: formalism could be about the relationship between doctrinal categories/rules. Traffix may work to shove a bunch of subject matter into patent. One reason might be that utilitarian functionality is easier for courts to understand. That might be true w/r/t certain prongs of Traffix, though not Morton-Norwich, related to the rules/standards division. That’s different from the relationship b/t the category functional and the category distinctive, which is governed at least in part by §2(e)(5), which says that notwithstanding distinctiveness, it’s not protectable if it’s functional. This is a formalist rule about the relationship b/t the categories: functionality overrides distinctiveness. The q for us today is “does that relationship also hold for the relationship b/t the category ‘merely ornamental’ and the category ‘distinctive.’” The TMEP says that the categories are disjoint/do not overlap. But what do we do when that’s not true: distinctive but aesthetically functional; ornamental but some distinctiveness? We might create a new categorical rule. Louboutin as generative of his thinking on this—Second Circuit rejected a formalist move to say that fashion doesn’t allow single color TM. But it didn’t replace it with anything! It still reached the same result on a particular claim, but only in reliance on a claim that there was no “use” of the TM. What do we do when the categories intersect?

Ohly: mirrored in European law in the relationship b/t distinctiveness v adding value to the product; the latter cannot be overcome by acquired distinctiveness, but the Q of what “substantial value” means does create instability.

McKenna: when you say “merely ornamental means not distinctive,” that invites at the retail the claimant saying “distinctive thus not merely ornamental.”

Sheff: so the TMEP’s claim of disjoint categories is the key issue.

Gangjee: Adidas cases with stripes on clothes presents the issue of TM function expands to alleged infringement for using other numbers of stripes—ornamentality/aesthetic functionality may give us reasons to keep the scope narrower than infringement doctrine would otherwise allow.

Registration systems and use systems are a spectrum: hyperformalism is working only in one direction in the EU to allow registration; presume a pro-registration outcome, but then you don’t actually make the TM owner commit to using that way in the future. EU disclaimers have completely collapsed b/c consumers don’t care about them—so suddenly we do care about what consumers think! Only works in one direction. Nonuse/revocation is not promising in the EU context either—only about 4600 claims in 22 years for 2.1 million registrations, nearly half figurative. We can’t expect post-5 year nonuse being any reasonable check.

Porangaba: revocation is useless b/c time is of the essence in most marketing decisions.

Davis: we’re talking about brands: if you become a brand, getting aesthetic and emotional meanings, should you lose your TM? Does it matter that Burberry was adopted by football hooligans? For them it wasn’t about source but about signalling membership in the community?

Dinwoodie: potential gap between consumer recognition and source association.

Some formal rules work better than others: Wal-Mart does some things well, but there has also been gaming of the system. McKenna wants formal solutions in TM and pushing to unfair competition which is the opposite of formalism.

McKenna: they do different things.

Dinwoodie: but then people just plead §43(a) and get around your limits on TM.

Sheff: Old, premerger TM was the crystal to premerger unfair competition’s mud. That’s different from the relationship b/t categories like functional and distinctive. Formalism may create inefficiency and uncertainty too. Wal-Mart might be worth it in avoiding a bunch of terrible claims, but not always.

Ohly: notes increasing formalization of unfair competition too in Europe.

McKenna: they depend on each other: formalism of TM was enabled by virtue of having an equitable release valve, but only worked b/c had narrow conception of what it was trying to do—it was a passing off rule (that accepted any evidence you wanted to submit about why this incident was passing off). Maybe people would recognize a polo image on the front of a shirt b/c they saw it on the hang tag first—the system could allow you to prove that—but now we have the worst of both words, with layer on layer of doctrine that gives you the inflexibility of TM and the muddiness of unfair competition.

Grynberg: equity winds up in defenses, but with a doctrinal mush as in LTTB. Both need to clarify defenses and avoid having too many boxes for the system to work. Language of registration: no mark that is distinctive shall be refused unless … But that would allow for a lot of developments about the concept before the “unless.” Federal Circuit approved refusal of .sucks on F2F grounds, but we are one bad ruling away from really messing with that.

Ramsey: focus on whether particular subject matter had substantial value at the time it was adopted as a TM. That could help distinguish value conferred by brand value/Au-tomotive Gold from attempts to register Black Lives Matter etc. Is therefore ok w/outcome of Honey Badger, as a potential compromise. [this is the collapse of TM value into value: he created the phrase as part of a video—for which he copied the footage from elsewhere, not for nothing—that had copyright value, but he didn’t create any TM meaning or value.]

Silbey: “too much nonTM meaning” and “substantial meaning when adopted” has her thinking about fame. Meaning can change over time so we should be wary of that [but then again we see lots of people trying to appropriate things with lots of nonTM meaning, so we should perhaps at least presume that it hasn’t unless the claimant shows that the nonTM meaning is no longer prevalent. This is a proposal about the kinds of claims TM systems are likely to see, not a proposal about meaning in general].

Simon: the meaning of “adds value” may be gamed. Suddenly everything adds value. Copyright overlaps may be a source of the problems.

Grynberg: free riding is a two-way street and lots of times merchandisers are free riding on someone else’s innovation.