Article on Intellectual Property Dimensions of Real Property

Michael N. Widener recently published an Article entitled, Brand: Modern Realty Transfers’ Iconic Dimension, 51 Real Property, Trust & Estate L.J. 23 (2016). Provided below is an abstract of the Article:

Any real estate project branded “Trump [Product Type]” is better positioned in marketing circles than equivalent projects lacking that association.* The preceding sentence reminds you that real estate is a consumer product in one seminal respect. Brand, even in real property development, reflects upon the lifestyles of persons shopping, eating, working and sojourning in a unique place. Development projects today need branding to differentiate themselves from other places and to message to potential shoppers, consumers, tenants or buyers what it’s like to engage in a dynamic environment or to enjoy the creative energy of fellow occupants or the surrounding neighborhood. Messaging has much to say about the image and reputation of a commercial property – and the expected momentum of the project’s lease-out or unit sales. It creates an emotional, visceral connection with shoppers, travelers, workers or whomever is the target of the “experience” narrative. 

Such vital components of those images and messages that cumulatively constitute the “brand” of a real estate development must follow ownership or leasing of the project. This paper identifies all the critical branding elements, discusses how in this digital age they are registered (secured) in their creators, and how (and why) future use of those elements must be secured by the buyer or the ground tenant – whomever is the transferee of the physical project. As new means of expression such as Memes and GIFs, followed by emoticons, populate the branding realm, the practitioner must stay on her toes to advise transferees of their burdens of due diligence and securing rights in the brand. This paper suggests the proper path to transferees’ ongoing rights to control the brand elements beyond closing on the concurrent real property transaction. 

*If you doubt this proposition, consult Donald Trump for his view. This abstract itself tests the power of the surname Trump to secure “views” and downloads of the accompanying paper.