Re: [CH] Re: Evil corporate types
Tina Brooks (shoestring_louise@yahoo.com)
Tue, 3 Jun 2008 10:05:28 -0700 (PDT)
Ah, but therin lies the rub... It is not the recipe that is trademarked, it is the name and the fact that the recipe for Coke is different in China than in US or Canada is moot, it's still their beverage and that mark is what makes it so, not the ingredients. So long as someone else doesn't copy their mark.
By the same token, get a good chemist, copy Coke's recipe, to the letter and market it as Mojo Juice (assuming that's not already a mark) and Coke is utterly totally and completely unprotected. There is nada they can do about it.
I'd be more worried about a company STEALING my recipes than I would about them stealing my Mark.
=====
Tina Brooks
VP Marketing, Peppermaster Hot Sauces <a rel="nofollow" target="_blank" href="http://www.peppermaster.com">www.peppermaster.com
</a>Brooks Pepperfire Foods Inc. <a rel="nofollow" target="_blank" href="http://www.pepperfire.ca">www.pepperfire.ca</a>
Phone: (514) 393-3430
26 St. Jean Baptiste, East
Rigaud, Quebec, Canada
J0P 1P0
Network with me on <a rel="nofollow" target="_blank" href="http://www.gourmetbusinessforum.com/">www.gourmetbusinessforum.com</a> -- The premier online business community for food professionals
<em><font color="#ff0000">Many persons have a wrong idea of what constitutes true happiness. It is not attained through self-gratification but through fidelity to a worthy purpose.</font> <font color="#4040ff">Helen Keller</font></em>
----- Original Message ----
From: Rael64 <z42dkm@yahoo.com>
To: chile-heads@globalgarden.com
Sent: Tuesday, June 3, 2008 11:23:00 AM
Subject: Re: [CH] Re: Evil corporate types
christ, I must be bored or something. Anyway...
I agree that trademark law is important. Damned tired of all that cheese called "parmesan" that ain't nothing like the Real Thing.
Yet, I think a point being bounced around is that the case the folks down on Avery Island present, that they used the name Tabasco in reference to a hot sauce *first*, is not iron clad. Consequently, while trademark law is important, as important is the truth behind the claim. It is, apparently, debatable as to whether Tabasco brand hot sauce was in fact the first to use the term "tabasco" in the name.
But for me, what's always been bothersome is that the tabasco chile is owner, as it were, of the name "tabasco", in my opinion. To use the name of a chile in one's product which is, essentially, tabasco chiles plus some vinegar and salt (yes, that may be simplified), and then claim that the term "tabasco" is somehow trademarked because someone decided to use it in a name is a subtle bit of trickery (i.e. dishonest and maybe outright theft).
So, again, while trademarks are important, they should protect *specific* names of *specific* products, else any ingredient in any product is up for trademark grabs. (e.g.: 'Water [TM] brand beverage, with lime' as created by the Aztecs)
The idea that tabasco chiles were first used in the preparation of a "hot sauce" (which is a vague term in and of itself) by the McIlhenny's is quite doubtful. That's akin to saying they developed the "tabasco chile hotsauce". You just can't prove it. Steep some tabascos in some vinegar for a day, and you have "hotsauce;" fry some tabascos in some hot oil and you have a "hotsauce". Point being: the only argument behind McIlhenny's trademark is that to date, no one can disprove that Tabasco brand hotsauce was not first on the market (the debate as to that claim notwithstanding). Consequently, using a generic name such as Tabasco should, in my opinion, be the dog that comes back to bite the owners who were too stupid to come up with a more specific name.
But...then you have the case of Coca-Cola, which while of the same name in China/Tibet, the drink is not the same (they use sweetener other than corn syrup, which makes for a FANTASTIC coke). What's up with that? They have confused their own trademark by putting two (at least) variations of the same product under a trademarked name. Even if they get another trademark for the same name for a slightly different product, does that not destroy the argument as to product recognition? Joe public grabs a "coke" and, wow, that's not the coke I know? What's up with that?
But, like, whatever. I need a smoothie made with orange juice and some yogurt with a bit of peach and raspberry. I call it an Orange [tm], Peach [tm], Raspberry [tm] yogurt [tm] smoothie [tm]. You heard it hear first.
Peace [tm], Hendrix, and Chiles.......
Rael"...think I'll make some tabasco [biteme] vinegar...for a salad tomorrow..."64 [tm]
--- On Tue, 6/3/08, jim@wildpepper.com <jim@wildpepper.com> wrote:
> From: jim@wildpepper.com <jim@wildpepper.com>
> Subject: Re: [CH] Re: Evil corporate types
> To: "Jim Graham" <spooky130@cox.net>
> Cc: chile-heads@globalgarden.com
> Date: Tuesday, June 3, 2008, 8:47 AM
> 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