Re: [CH] Re: Evil corporate types

jim@wildpepper.com
Tue, 03 Jun 2008 09:47:00 -0400 

The cynacism is overwhelming you!  Fight it!!  :-)

Yes- you may have heard about absurd lawsuits, but we rarely hear of
their outcome.  Firefighters, with too much time on their hands often,
are constantly sitting around the breakfast table talking about
imaginary situations we encounter on the street, envisioning getting
sued for this or that.  Yes- you can get sued for anything these days. 
HOWEVER, "winnnng" said suit, is an entirely different matter.  I will
grant that it occasionally happens, but the odds aren't all that
great... especially under trademark law which is the topic here.  Let's
not wander off into unrelated areas like product liability.

While sounding a bit vague, Trademark law is fairly clear:  any
circumstance that can cause reasonable confusion in the consumers' mind,
due to likeness in name or similarity of mark, can be considered an
infringement **IF** competing in the same class.  Thus, it would be
utterly ridiculous (except for some publicity maybe) for Tabasco (sauce)
to sue Tabsaco (state) or the breweries to sue Boston (city) as they are
not competing.  Boston (city) also doesn't have a trademark on the name
Boston, nor does Tabasco (state).  Understanding that, it is entirely
reasonable then that Boston Brewery goes after Boston Beer under the
similarity clause.  The law REQUIRES you to defend your mark or loose
it.

The Budweiser suit is quite a bit more complex than can be distilled
(pun!) down into a couple of sentences.  I'm very likely
over-simplifying it as well, but here goes.  Yes- the people in Czech
having been making various beers for centuries calling any number of
them Budwar after the region, describing a style of beer, rather than
any one specific beer.  The name has come and gone periodically over
there, always in GENERAL use, but not SPECIFIC use as a host of
breweries have variously used the name.  (People in Indiana have been in
the auto industry for a looong time as well, and part of that includes
making tires.  This will tie in shortly to the point at hand.) 
Anheuser-Busch made and trademarked the name "Budweiser" to apply to a
SINGLE specific beer made by them.  It went without challenge for a
couple of hundred years.  (People in Indiana were making auto and
bicycle tires during this period.)  Budweiser went on to be a recognized
world wide mark.  In an attempt to cash in on this, an enterprising
Czech brwery tried to recently market a "Budweiser" under the argument
that the term had been around for years, even though they couldn't prove
THEIR use of it.  (An enterprising tire maker in Illinois started making
tires under the brand name of "Hoosier"- which for those that don't know
is the nickname of anyone from Indiana.)  A poor analogy maybe, but
workable:  If I were to start making tires now and called them
"Hoosier", based on the fact that I was a Hoosier and my people had been
making tires forever, my claim- based on regional, non-specific usage-
would (should!) meet the same fate as someone trying to cash in on
someone else's hard work and branding.

We WANT this law!  Imagine how difficult our lives would be as consumers
if there were 15 different sauces named Tabasco, 20 different
Budweisers, or 30 different A-1's, all looking remarkably similar in
appearance and name.  I suspect we'd waste a lot of money, having in a
hurry occasionally grabbed the wrong one.  Think of the impact on
business!  I would have absolutely NO incentive to try and increase my
marketshare, or grow my business, if someone else could just come along
and name his thing the same as mine and take my customers through
confusion.  I celebrate the foresight and the entrepenurial acumen of
these folks!  I'm not the least bit threatened or see anything nefarious
in it.  It causes me (rather than be resigned and cynical) to have
BETTER foresight and be more inovative in my strategies.  Competition is
a good thing :-)

*Never* settle for a one paragraph summary you find on the internet or
read in the paper!  We all know the media either a) gets it totally
wrong, b) sensationalizes it for headlines, or c) simplifies it past all
understanding of the original issue.

Hope this helps!

-Jim
http://www.StepUpforCharity.org