DTOM: Nike Conquers in TM Scuffle

“Don’t tread on me.  Say don’t tread on me.” Don’t Tread On Me, Metallica

In 1754, Ben Franklin created this woodcut image, urging the 13 American colonies to join together in opposing British rule.  Before long, the colonies heeded Ben’s warning, came together to form a potent nation that declared independence, trounced the British, wrote a nifty and resilient constitution, struggled and stumbled (most violently over slavery and states’ rights leading to civil war), preserved freedom and democracy in two world wars, and then emerged as the  most dominant power the world has ever known.  Franklin’s political cartoon, of course, cannot take all the credit for America’s success.  But his image, and the slogan it spawned–“Don’t Tread On Me”–endure as powerful symbols of the nation’s resolve.

“Don’t Tread On Me” also happens to be a pretty popular slogan for T-shirts.  A couple of brothers from California sell a line of “Don’t Tread On Me” tees that seem to have caught on with the heavy metal set–most notably with the band Metallica.

Not exactly what Ben Franklin had in mind when he was trying to inspire a great republic, but a clever marketing gimmick nonetheless.

The brothers applied for and obtained a trademark registration for the slogan, and its abbreviation, the acronym DTOM.   They probably thought that their Federal registration would keep their company as free from competing uses as Franklin and the Founding Fathers must have thought the Atlantic Ocean would keep the United States free from invasion.

While Franklin et. al. were right (the War of 1812 being but a minor nuisance), the DTOM boys were dead wrong.  Because when they applied for their trademark, they broke a fundamental rule.  They claimed that they were using the mark for a laundry list of items they didn’t sell and have never sold.  And,  worse, although they did use their slogan and acronym on t-shirts, they couldn’t substantiate their claimed date of first use.

So when the brothers sued to stop another great power, Nike, from using the same slogan and acronym, Nike had ammunition to fight back.   Nike convinced the court that the brothers’ claimed date of first use was bogus, and that Nike’s first uses of “Don’t Tread On Me” and “DTOM”–fittingly, on clothing for the U.S. National Soccer Team–were first.  The decision by a federal judge can be appealed.  But for now, Nike remains free to sell its line of “Don’t Tread On Me” and DTOM clothing, while the brothers face the prospect of losing their trademark for falsely claiming to use their marks on  a host of products they’ve never sold.

When the 13 colonies bravely joined together under Franklin’s banner and rallied around the words “Don’t Tread On Me,”  their hopes, dreams, and courage made history.  Unfortunately, for the two brothers from California and their heavy metal t-shirt empire, that slogan has not yielded the same inspirational ending.

QUOTE OF THE DAY:  “Being ignorant is not so much a shame, as being unwilling to learn.”  Benjamin Franklin

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