Re: [CH] Re: Evil corporate types

Perry C. Abernethy (pcabernethy@comcast.net)
Tue, 3 Jun 2008 08:49:43 -0600 

Having practiced trade mark law, good summary. Some of the trademarks lost 
over time for failure to defend (and some regained) are Cola, Singer, 
Kleenix, Cellophane, Band-Aid, Standard Oil (S.O. taken by Esso), etc. 
Whataburger has sued and lost when suing hamburger stands that used the name 
long before the chain started. There are different types of "confusion", 
primary and secondary. Most of you are talking about secondary confusion. 
Where there is "primary" (or actual)  confusion, then its a slam dunk win. 
Alot of companies will deliberately violate a trademark, because they know 
the trademark holder will act too slowly and they will gain significant 
market share. Goodyear did that to Big O tire. Its a famous case because Big 
O used a temporary and permanent restraining order and won hundreds of 
millions of dollars from Goodyear. By the way there can be no "evil" 
corporation-it a fictitious business entity. Only a specific person or 
persons working for the corporation can be evil. ;-)
----- Original Message ----- 
From: <jim@wildpepper.com>
To: "Jim Graham" <spooky130@cox.net>
Cc: <chile-heads@globalgarden.com>
Sent: Tuesday, June 03, 2008 7:47 AM
Subject: Re: [CH] Re: Evil corporate types


> 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