Tag Archives: trademarks

March 19, 2020 · 9:54 pm

Does Endless Summer Have Two Rs?

“Let’s go surfin’ now, everybody’s learning how, come on on safari with me.” Surfin’ Safari, music and lyrics by Brian Wilson

Surfing has strangely been on my mind lately. I’ve been reading the book Barbarian Days, A Surfing Life by William Finnegan. In it, Mr. Finnegan chronicles his early fascination with the sport, sparked not only by his family’s proximity to surfing meccas in Southern California and Hawaii, but also by the surf culture of the early-to-mid sixties, indelibly captured by the guitar driven surf music of Dick Dale and The Ventures and in films such as Beach Blanket Bingo, Gidget, and Ride the Wild Surf. I grew up during in those days, only an hour or so drive “down” the Jersey Shore. And though my sporting interests were rooted in terra firma, I recall my family’s first visit to Long Beach Island, a sliver of a barrier island north of Atlantic City. After a day in the sun, the five of us sat on logs around a small fire and listened to a local cover band tear through a credible version of the ultimate surf instrumental, Wipeout. I fell asleep that evening with visions of taking drum lessons and then mesmerizing my classmates with a virtuoso performance of Wipeout’s iconic drum solo. But when school rolled around that September, I was given a Bundy clarinet, began free lessons, and was forever consigned to the woodwind section, several strata below the rarefied cool of brass and percussion.

Around that time, in 1966, a bunch of us kids walked downtown to see a film called The Endless Summer. Produced and directed by Bruce Brown, the movie followed two surfers on a surfing trip around the world in search of “the perfect wave.” Again, I was a city kid who had as much contact with surfing and surf culture as I had with bullfighting. Yet the film’s exotic locations and thrilling action photography captivated me like no movie before or since.

So, with surfing and The Endless Summer on my mind, I was surprised by the odd coincidence of seeing The Endless Summer in today’s intellectual property news. According to IP 360, “The filmmaker behind “The Endless Summer” is suing Nike and Foot Locker for trademark infringement, alleging that an ad campaign that ran last year used the movie’s title and graphics from its poster to sell shoes and other apparel.” In the Complaint filed in, where else, Los Angeles, the filmmaker’s company alleges not only that The Endless Summer is “considered to be one of the most influential films to depict surfing and the surfing lifestyle,” but also that “The Endless Summer and the images emblematic of the Endless Summer film poster have become famous and distinctive brands.” The Complaint goes on to allege that the Foot Locker/Nike “Endless Summer” ads confused consumers into thinking that the filmmakers had approved the campaign. The question posed by the case is this: Does The Endless Summer have to Rs–the “r” in summer and the “Circle R”–the registered trademark symbol? And, yes, the filmmakers do own a federal registration for THE ENDLESS SUMMER. The case is Bruce Brown Films LLC v. Foot Locker Inc. et al., case number 2:20-cv-02553, in the U.S. District Court for the Central District of California.

The Endless Summer has been on my mind for another reason. In 2003, Bruce Brown’s son put out a sequel to The Endless Summer called Step Into Liquid. Naturally, I had to see it. And I did–during the aftermath of a massive storm that knocked-out power in D.C. for nearly a week, leaving us unmoored and insecure. I’d been thinking about that small disruption during our current, more dire, national public health crisis. And reading William Finnegan’s surf memoir has been transporting me back to The Endless Summer of 1966 and to that film’s classic poster: the faceless silhouettes of three male surfers against an eye-popping Day-Glo background dominated by a giant yellow sun.

Today, during the first week in what likely will be a long and challenging test of our collective resolve, compassion, and ingenuity, when my age demographic appears to be at greatest risk, it’s strangely comforting to see that something so intertwined with my generation’s collective cultural consciousness–a film about a challenging journey, about risks, about courage and about the danger and beauty of the natural world–remains as vital and relevant today as it did over 50 years ago. Let “the perfect wave” be a metaphor; never stop searching.

Quote of the day: ““You can go right or left, but you can’t very well do both at once.” The Endless Summer

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March 30, 2017 · 3:16 pm

Trial of the Century: Trademark Style

“So this is the Day of The Dead” from “We All Lose One Another” by Jason Collett
Trial of the Century! For most Americans, those words conjure two letters—O.J.  But for the past week or so, O.J. arguably has been upstaged by an unlikely figure—Dan Aykroyd.
That’s right, Dan Aykroyd–one of Saturday Night Live’s original “Not Ready For Prime Time Players” who won the fame as the staccato pitchman in SNL’s “Bass-O-Matic” infomercial parody, and who cemented his place in comedy’s pantheon with the original “Ghostbusters” and “Blues Brothers” films. That Dan Aykroyd has evolved into a trademark crusader for his real-life brand of vodka called “Crystal Head,” sold in a distinctive skull-shaped bottle:

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As with most things, success breeds imitators. For Crystal Head, imitation came in the form of rival KAH brand of tequila, also packaged in skull shaped bottles. Unlike Aykroyd’s brand, those skulls were opaque, brightly colored affairs:

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KAH founder Kim Brandi claimed that Mexico’s iconic Day of The Dead imagery had inspired her skull design. Aykroyd and his business partner Globefill, Inc., didn’t buy it. They sued for trademark infringement back in 2010. But in a 2013 trial, Brandi beat back Aykroyd’s infringement claim. She testified that she hadn’t even seen Aykroyd’s skull bottles. And the jury bought it.

Dan Aykroyd didn’t give up. He and his lawyers appealed and won a new trial. That new trial, which unfolded last week in a California courtroom, featured showmanship, skullduggery, and scandal worthy of one of Aykroyd’s big-budget Hollywood movies. Aykroyd cast himself in the role of star witness for the prosecution. Wielding a tape measure, Aykroyd systematically compared the features, angles, and dimensions of his skull bottle to Brandi’s. He also testified that confusion in the marketplace was threatening his brand. Claiming to have found a broken glass inside a KAH bottle, Aykroyd told the jury: “I thought, even more reason for me to be concerned about source. What if someone got hurt? And for someone to think we have a product on the market that’s inferior to our vodka, that’s unacceptable.” Aykroyd also testified that KAH tequila “obviously” was a confusingly similar copycat: “I really couldn’t count about how many people who have come and asked us about our new tequila in the skull bottle. We had to say, ‘It’s not ours.’”

Brandi, for her part, argued that Aykroyd shouldn’t be able to block all skull shaped liquor bottles, especially ones like Brandi’s, whose bright colors evoked iconic Mexican imagery. And Brandi stuck to her story, insisting that she hadn’t seen Aykroyd’s skull bottles when decided on the Day of The Dead theme for her tequila bottles. She brushed-aside the similarities Aykroyd had pointed out as “coincidence.”

That’s when the real drama happened. In a finale worth of Perry Mason, Aykroyd’s legal team unveiled a bombshell—the guy Brandi hired to design her bottles. This surprise witness testified that Brandi handed him one of Aykroyd’s skull bottles and told him to make a plaster cast of it so that she could model her design on Aykroyd’s distinctive skull container.
Armed with this testimony, Aykroyd’s lawyer told the jury that Brandi had lied. Four hours later, the jury returned its verdict—guilty as charged.

So now, seven years after the story began, Dan Aykroyd and his legal team are close to achieving their perfect ending. All that remains is for the Judge to decide the remedy. That phase of the case is still to come. For now, Aykroyd has the satisfaction of knowing that, at least for now, justice delayed is not justice denied.

The name of the case is Globefill Inc. v. Elements Spirits Inc., 2:10-cv-02034, U.S. District Court for the Central District of California.

Quote of the day: “Alas, poor Yorick! I knew him, Horatio, a fellow of infinite jest, of most excellent fancy. He hath bore me on his back a thousand times, and now how abhorr’d in my imagination it is! My gorge rises at it.” Hamlet by W. Shakespeare

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July 31, 2015 · 7:47 pm

Guitar Wars – Martin Fights to Save Wildlife and Its Brand

“Please Papa can I go. Down to Richmond to the traveling show. Please Papa don’t you say I can’t. I just want to see the elephant.” See The Elephant, music and lyrics by James McMurtry.

I’m not a lucky person. I’ve never won the lottery, not even a five-dollar scratch-off. And when it comes to art, I’d have better luck at a raffle drawing than drawing an object, portrait, or thing. But this past weekend, I found myself in front of a booth run by Martin Guitar being invited to enter a contest that would require both luck and artistic talent to win.

442319.DOCFor those not familiar with the hierarchy of guitar-dom, C.F. Martin & Co. of Nazareth, PA. occupies the pinnacle of the acoustic guitar realm. (For those really not familiar with these six and 12 string instruments, “acoustics” are the hollow wooden ones).

The contest seemed simple—it was part of Martin’s “Draw an Elephant, Save an Elephant” campaign directed to raising awareness for the plight of that endangered species. The connection between elephants and guitars seemed a bit obscure, considering that the pachyderms are more likely to stomp on a guitar than to fingerpick one. But who was I to scoff at a worthy cause? Besides, I’ve been tuned-in to the evils and perils of poaching elephants in the jungle ever since watching Tarzan and the Ivory Hunters at a 25-cent Saturday matinee back in the day. As it turns out, Martin Guitar has a long history of environmental stewardship. Years ago, Martin Guitar substituted a synthetic for the ivory used on its instruments.

To enter this contest, #Save Elephant, all you had to do was draw an elephant and you were eligible to win a prize. Pretty simple. But to me, it was daunting. I had been kicked out of remedial art class in elementary school. So my “flight” instincts kicked-in.

But the folks running Martin’s booth were friendly, and my son, a graphic designer, egged me on. I decided to give it a shot. After all, we were at The Newport Folk Festival, we’d been enjoying energetic and passionate performances across three stages strategically placed around an old fortress that once protected Rhode Island from pirates and non-musical British invasions. The sun shone and spirits were high. And I was surrounded by an array of gorgeous C.F. Martin guitars—the same brand made by this family company since 1833 and played by legends and musical greats for over a century. Hank Williams strummed a Martin model D-28 that Neil Young now owns and plays in concert. Woody Guthrie owned several Martins. And Bob Dylan played a Martin guitar before famously picking up an electric Fender Stratocaster at Newport 50 years ago this past week, shattering the folk music world, prompting boos from the crowd, and changing popular music forever. (A 50th anniversary tribute to this seminal moment from 1965 capped this year’s Newport weekend. The infamous Fender was on hand, strummed by Taylor Goldsmith, a member of the indie-folk band Dawes, leading a soaring version of Maggie’s Farm, backed by keyboard legend Al Kooper who played the same organ lines when Dylan performed that song five decades earlier.)

Martin was offering one prize per hour, and for all I knew, a guitar could have been one of them. So rather than succumb to my inhibitions and phobias, I reached for a pen and began drawing my elephant. I won’t say it was elegant. I won’t say is was attractive. But my drawing definitely captures a certain elephantine essence. I eschewed cubism and abstract expressionism for my own brand of post-modern realism, that is to say, you’d have no trouble recognizing the trunk, ears, tusks, and stumpy legs of my elephant masterpiece.

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I signed my work, filled out the entry information, and went back to enjoying music and Newport Harbor breeze.

About an hour later, my cell phone rang. It was a call from “Allentown, PA.” Not knowing anyone from that part of the Keystone State, and being in the middle of a migration from one festival stage to the next, I almost declined the call. But instinct urged me to answer. “This is Martin Guitars. You’re our twelve-o’clock winner,” the caller said. I froze, disrupting the stampede of festival foot traffic, then I headed to the Martin Guitar booth. There I met Skip, who congratulated me and showed me a table piled with prizes. No, the guitars weren’t part of the contest. But I got to select a t-shirt with the original Martin logo and lettering, direct from the company archives:

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Admiring the logo, I mentioned that when I’m not attending music festivals and concerts, I’m a trademark lawyer, and told him about my interest in brands and their histories. We then discussed, how, as with many brands, the Martin logo and iconography have evolved. But the essence of Martin’s brand identity has remained constant through the use of the C.F. Martin name, and through continuous use of Martin’s simple, iconic, headstock design:

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I then learned from Skip that Martin Guitar was no stranger to intellectual property battles. A few years ago, on a visit to China, the company’s sixth-generation CEO, Chris Martin, discovered a collection of guitars that looked like genuine Martins, but were actually poorly made counterfeits. (Where a genuine Martin takes weeks to make by hand and may sell for several thousands of dollars, the Chinese company was mass-producing its ersatz Martins and selling them for a few hundred dollars each). It turned out that another company had registered Martin’s trademark in China, and was hijacking Martin’s reputation under the protection of Chinese law. (Michael Jordan faces similarly vexing copycats of his name and the “Jumpman” logo.)

Martin took action, registering the shape of its iconic headstock as a trademark in the United States Patent and Trademark Office:

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(Registration No. 3,048,307). Martin also recruited Pennsylvania Senator Robert Casey to come to its aid. But the problems Martin faced in China stem from that country’s legal system. Chinese trademark law protect the first company to file for a mark in that country, even if that company is hijacking a brand that’s famous elsewhere in the world. And the law in China lets that company sue if the Real McCoy tries to sell its genuine goods in China.

Martin Guitar’s experience in China highlights the need for companies with strong U.S. brands and worldwide reputations to take preemptive action. Brand owners need to be proactive, aggressive, and creative. They should consider trademark registrations for key brand names, logos, and shapes in key countries, especially ones like China with reputations for counterfeiting. Like Martin Guitar, don’t just register words, look at products shapes and designs, which can also qualify for protection under trademark and patent law. And be vigilant. Otherwise, like the elephants that gave rise to this story, a famous trademark may be prone to poaching, which can weaken a brand, and in rare cases, drive it to the point of extinction. And the last thing anyone needs is another crude drawing from me trying to save another endangered species.

QUOTE OF THE DAY: “Sometimes the nicest thing to do with a guitar is just look at it.” Thom Yorke.

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January 22, 2015 · 10:58 pm

Beer TM Today, Gone Tommorow: IPA Spat Goes Flat

“The room was humming harder, As the ceiling flew away, When we called out for another drink, The waiter brought a tray.” A Whiter Shade of Pale by Keith Reid, Gary Brooker (recorded by Procol Harum)

Surprise turned to Schadenfreude last week in trademark land when micro-brewer Lagunitas sued micro-legend Sierra Nevada for trademark infringement. The mark at issue? IPA–a common acronym for the style of beer called “India Pale Ale.” For years, Lagunitas’s IPA packages featured the letters IPA in large, highly stylized script. And Lagunitas saw red when Sierra Nevada changed the packages for its IPA to put those letters front and center:

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Scores of brewers offer up their takes on this hoppy variety of pale ale. And many call it “IPA.” So the odds that any one company could snag “IPA” as a trademark would seem long at best–not the makings of a good bar bet. But those long odds did not deter Lagunitas. In its lawsuit, the company focused on style, not substance. According to Lagunitas’s complaint in Federal court, the letters IPA weren’t the issue. Sierra Nevada’s offense was copying the large-letter format and style of Lagunitas’s IPA logo.

But in this era where microbreweries are giving the beer establishment a run for its money and craft beer isn’t just for hipsters anymore, the nuances of trademark law sometimes can get lost on the blogosphere. Rather than stirring up sympathy, the lawsuit sparked a brew-haha of criticism, with Twitter and other social media sites overflowing with outrage over the idea that one brewer could monopolize IPA. So even though that wasn’t Lagunitas’s aim, the brewer responded to the backlash with contrition reminiscent of a morning-after dose of reality. In a Twitter post, owner Tony Magee wrote: “Today, I was seriously schooled . . . Tomorrow morning we’ll drop the infringement suit.[and] get back to answering other questions.”

So Lagunitaas learned a valuable lesson. When it comes to IP rights for IPA, size apparently doesn’t matter.

QUOTE OF THE DAY: “I am a firm believer in the people. If given the truth, they can be depended upon to meet any national crisis. The great point is to bring them the real facts, and beer.” Abraham Lincoln

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July 16, 2013 · 4:53 pm

Onward Trademark Soldiers? Newsboys Cannot Stop the Rap Music

“Lately I’ve been thinking / What would the world do without the news / You wouldn’t know when wars were started / Or when they ended, win or lose.” Newspapers by Stan Ridgway

Yesterday’s IP blogosphere brought news of another battle of the bands involving trademark rights. Christian rockers the Newsboys did not turn the other cheek when they discovered a rap duo performing as New Boyz. They sued. And they lost. Bigtime. Oh, the Newsboys got their day in court all right, but it lasted just about one day, with the judge tossing the complaint as legally deficient. The Newsboys claimed that the rappers’ name New Boyz would confuse and confound the music buying audience. They railed that the New Boyz songs were sexually charged. They pointed to their own 1991 album title “Boys will be Boyz” as evidence that the groups’ names were too close for comfort. And the band that had honed its reputation in the realm of Christian Rock insisted that their music was not just for the religious set; they claimed “cross-over” appeal to the same “demographic” that listens to and downloads New Boyz allegedly salacious songs.

But the secular audience who mattered–the judge–was not buying it. He granted the New Boyz’s motion to dismiss the trademark infringement charges as implausible, concluding that the Newsboys’ “factual allegations of customer confusion do not include any factual allegations of confusion about the source of each band’s marketed music.” Influencing the court’s ruling was the focus of the Newsboys’ federal trademark registration–“live musical performances of a religious nature.” The two groups market their music to two distinctly different crowds, making the Newsboys claims of confusion and damage to reputation apocryphal, according to the court. In short, the judge hewed to the ancient adage “live and let live,” and stopped the trademark fight on a TKO–failure to plead enough facts to get to round 2.

This case joins a line of music themed trademark cases allowing similar names to coexist when used for different genres. Perhaps the granddaddy of all is Sunenblick v. MCA Records, Inc., 895 F. Supp. 616 (S.D.N.Y. 1995), aff’d, 101 F.3d 684 (2d Cir. 1996): where the jazz record label Uptown Records lost its trademark battle against popular rap record label Uptown, with the court concluding that the urban music geography was big enough for two Uptowns.

And of course, we only have to scan the bins of the few remaining brick and mortar record stores to see that bands with similar names often coexist without sparking nasty trademark battles. Pop-rocker Bryan Adams rubs shoulders with Alt. Country Rocker Ryan Adams, while The Who and The Guess Who have played in peace for nearly six decades.

So, while the ending of the Newsboys’ story may seem abrupt, the result, at least for now, seems to be in tune with history. If there’s a moral to the story, it may be this, it’s one thing for a band to claim that its music has crossover appeal, it’s another thing to prove it.

QUOTE OF THE DAY: “In the case of news, we should always wait for the sacrament of confirmation.” Voltaire

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May 22, 2013 · 4:31 pm

The End: Death of a Door Likely Prevents Future Jams

“You and I travel  to the beat of a different drum.”  Different Drum, by Michael Nesmith

In a week dominated by devastation in the Nation’s tornado alley, it was easy to miss the news that Ray Manzarek, keyboardist for the Doors, had died.  While Jim Morrison defined the Doors’ image with his flamboyant stage presence and apocalyptic lyrics, Manzarek defined the band’s sound, lending baroque classical flourishes to the definitive Doors song Light My Fire and propulsive jazz inflected stylings to many other of the band’s hits. 

While Manzarek is best remembered for his music, his obituary also contains a Softrights-worthy footnote about a long simmering, and sometimes roiling,  trademark dispute over rights in the Doors name,  As reported in Billboard back in 2008, the four members of the Doors, Morrison, Manzarek, guitarist Robby Krieger, and drummer John Densmore, signed a pact in 1970 that gave each of them veto power over any business deal.  According to Billboard, the four Doors inked that agreement after a nasty battle about whether to let Buick use “Light My Fire” in a television commercial,

After Jim Morrison died in 1974, the remaining Doors remained largely, well, dormant.  But in 2002, Manzarek and Krieger itched to return to the stage. They tried coaxing Densmore to reunite the band.  Densmore declined. And though he took no issue with Ray and Robby performing the band’s music, using the Doors name was another story.  “You can’t call yourselves the Doors because you can’t have the Doors without Jim Morrison,” Densmore’s lawyer was quoted as saying.  And when lawyers are quoted, that means only one thing–a lawsuit.

Yes, despite Densmore’s protest, Manzarek and Krieger hit the road calling themselves the Doors of the 21st Century.  The tour reportedly earned them $3.2 million, none of which they shared with Densmore or Morrison’s estate.  So Densmore and Morrison’s representative sued and won, blocking further use of the Doors name and getting over $5 million in damages and costs. 

Manzarek and Krieger continued to perform together, calling themselves Riders On The Storm, and later, Manzarek and Krieger, with Densmore continuing to be the lone holdout to any commercial use of the Doors name or music (he reportedly vetoed a $15 million deal to use “Light My Fire” in a Cadillac commercial).  Shortly before Manzarek’s death, however, Densmore hinted publicly that the three surviving members might at last reunite.  But with the drummer finally singing a different tune, fate, not a court, has intervened to shut the Doors.

QUOTE OF THE DAY:  “There are things known and things unknown and in between are the doors.”  Jim Morrison

 

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May 14, 2013 · 10:22 pm

Owner With His Head In the Sand?: Redskins Name Controversy Returns

“Old enough now to change your name.  When so many love you is it the same?”  Cowgirl In The Sand by Neil Young

Dan Snyder, owner of the Washington Redskins, (the capital’s storied NFL franchise), is no trademark neophyte.  An entrepreneur since his college days, Snyder has lifted the Redskins franchise to become one of the most valuable teams in sports.  Snyder reaps a fortune selling jerseys and other merchandise emblazoned with the REDSKINS name and logo–a profile of a Native American man. 

So with these invaluable trademarks fueling the engine of his success, it’s no surprise that Snyder waited until  all of Washington’s trademark professionals  flocked to arch rival Dallas before opening the latest chapter in the ongoing controversy over the REDSKINS name.  While lawyers from private practice and the USPTO were convening convivially in the shadow of Jerry’s Jones’ opulent new Texas stadium, Snyder defiantly declared to USA TODAY–“We will NEVER change the Redskins name.” 

Long simmering charges that the name is racist and disparaging to Native Americans bounce off Snyder like raindrops beading off a freshly waxed car.   He insists that the name only refers to his football team, and has lost any disparaging or barbaric connotations it once may have had.  And public opinion polls are like the buffet table at the Club Level of Fed EX Field–there is something for everyone, with surveys supporting each sides’ take on the name.

So Snyder would rather fight than switch. 

And the fight over the federal trademark registration for REDSKINS, once thought to be over, has returned.  Back in 1992, Native American groups and individuals petitioned the USPTO to cancel the REDSKINS trademark, alleging that the name is disparaging.  The Lanham Act, the federal trademark statute, forbids registration for disparaging marks.  The petitioners won round one, but ultimately lost on a procedural issue; the reviewing courts ruled that they had waited too long to bring their challenges. The Supreme Court declined to take up the issue.  Now, however, there’s a fresh case. This time the petitioners are younger and claim that they could not have acted sooner. 

The new case is again pending before the Trademark Trial and Appeal Board (TTAB).  The TTAB, however, only has the power to cancel the REDSKINS federal trademark registration, not stop the team from using the name.  Losing the TTAB case would be a setback, and could affect the team’s rights in dealing with counterfeit merchandise, especially imports. But is wouldn’t be a mortal blow; it would not force the REDSKINS to change their name. 

For the petitioners and their supporter, the real issue goes beyond whether Snyder gets to keep his certificate of registration.  One can easily think of  several antiquated and pejorative  nicknames for ethnic or racial groups that would be offensive if used as the name of a sports franchise.  How is REDSKINS any different, opponents of the name ask?

Abe Pollin, the beloved civic leader and owner of city’s basketball franchise had no qualms about changing its name from the Bullets to the Wizards when he felt that naming a team after a lethal projective sent the wrong message in a city then plagued by gun violence.  And surely, measures could be taken to honor tradition and preserve the essence of the football team’s  brand while eliminating a term that some, perhaps even many, find offensive.   Who remembers that the KNICKS are really the Knickerbockers and the METS really the Metropolitans? What would be lost in the long run by similarly calling Snyder’s team simply the SKINS? 

Snyder, however, insists his conscience is clear and that the name will “NEVER” change.  It may be good business.  But whether it’s right is a question that trademark law can’t answer.

QUOTE OF THE DAY:  “People who work together will win, whether it be against complex football defenses, or the problems of modern society.”  Vince Lombardi

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May 7, 2013 · 6:12 pm

INTA The Great Wide Open

“Have you ever seen Dallas from a DC-9 at night?” Dallas by The Flatlanders

When you think of Dallas, many images snap to mind. The grainy, jarring frames of Abraham Zapruder’s home movie, Lee Harvey Oswald doubled over from the blast from Jack Ruby’s pistol, Tom Landry stalking the sidelines of the Cotton Bowl in his suit, tie, and hat, the portrait of Jock Ewing hanging over Miss Ellie’s mantle at Southfork, Tony Romo’s smirk, Larry Hagman’s devilish grin as JR Ewing over two generations of Dallas, the soap opera.

Trademarks, however, are not top of mind when you land at DFW or Love Field, not even as you make your way to the flagship Nieman Marcus in downtown Big D.

But here in Dallas this week in May, almost 10,000 trademark professionals–in-house corporate lawyers, outside counsel, Internet and domain name specialists, and flocks of experts and service providers–have descended on Dallas for the 135th International Trademark Association Annual Meeting.

Trademarks and Texas have come a long way since 1888 when the first annual meeting took place. Then, a “brand” in Texas literally meant a symbol seared into the hide of a cow. And justice was meted out by Judge Roy Bean, whose “Law West of the Pecos” entailed more hangings than injunctions for trademark infringement. (We shudder to think of how Judge Bean would have dealt with such devious hombres as counterfeiters and cyber squatters).

And those first INTA attendees back in 1888 would marvel at the range of topics swirling around INTA 2013–social media, fluid trademarks, gtdls, and the “food explosion” and other trendy subjects speak to the complexities and challenges of our brand-centric modern era.

Dallas has been hospitable and impressive. And steeped in history, from the life size sculpture of a long horn cattle drive that speaks to Texas’ Lonesome Dove days to the Texas Book Depository that reminds us of a dark day in November fifty years ago.

Having grown up in Lawrence NJ, I naturally gravitated to the Hotel Lawrence, a venerable establishment that makes up in friendly staff what it lacks in luxury. It’s just a block from Dealey Plaza, and sleeping in the vicinity of JFK’s final ride has conjured up some fitful dreams while rekindling interest in the “single bullet theory” and other conspiracies that seldom haunt my thoughts back home.

Yes, as those Texas troubadours The Flatlanders sing, Dallas is a beautiful sight, and a haunting one too.

QUOTE OF THE DAY: “Hang ’em first and try ’em later.” Judge Roy Bean.

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April 23, 2013 · 10:30 pm

Seeing Red: When It Comes To Ketchup There’s No Contest

Ketchup bottle“Anticipation. Anticipation. You’re making me wait. Keeping me waiting.” Anticipation by Carly Simon.

Back in the day–before plastic squeeze bottles with wide plastic tops let gravity do its work–coaxing ketchup from the bottle took patience, elbow grease, and courage. You never knew whether your insistent slapping of the bottom would propel the rich tomato red condiment–not quite a paste but hardly a sauce–strategically on the burger and fries as intended, or wildly on shirt and pants (the likelihood of misfiring being directly proportional to the amount of white being worn). And there was only one brand of ketchup worth risking that humiliation–Heinz Tomato Ketchup.

Recently, I heard about a new, hip restaurant boasting about its house-made ketchup. My reaction? Why bother? It can only lead to heightened expectations that are sure to be dashed when the homemade stuff just doesn’t measure up.

How could it?

To quote Carly Simon again: “Nobody does it better.” Heck, for years Heinz was really the only “ketchup.” Its main competitor in the tomato wars, Hunt’s, didn’t dare call its rival product ketchup, settling instead for the woefully weaker term “catsup.”

And let’s face it, if forced to choose between something with the sturdy, no-nonsense name “ketchup,” and the something else that made you sound like you spoke with a lisp, there really wasn’t much of choice at all. Not even Fred MacMurray and his three sons welcoming us to his home for Huntz could make buying catsup palatable

Last Sunday night, on “Mad Men,” the AMC drama about 1960s mores, morals, or lack thereof set in an advertising agency, leading man Don Draper and his team vie against his former protege, Peggy Olsen, for the lucrative Heinz ketchup account. It's a heavy weight bout waged in secret, because the Heinz guys are shopping for a new firm on the sly. Both Draper and Olsen create inventive presentations centered on the singularity of Heinz, the one true ketchup. A generic term so synonymous with its brand name that there is really no substitute, only disappointing also-rans. Today, salsa has supplanted ketchup as the best-selling condiment. But no watery tomato dip, whether spicy, medium, or mild, can ever replace Heinz ketchup as an iconic American condiment brand. Because Heinz=ketchup, and ketchup=Heinz. Everyone is else, from Hunt’s to Del Monte, has always been playing, well, catch-up.

QUOTE OF THE DAY: “The fashion industry isn’t merely content to encase my meaty flanks in skintight denim. Oh, no! That denim also has to be white, a color that attracts ketchup, wine, garlic aioli, and any other foodstuffs I might otherwise be able to enjoy if I wasn’t wearing ridiculously tight pants.”
Diablo Cody

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July 11, 2012 · 7:10 pm

Culinary Coronary Court Case: You Want a Stent With That?

“And I may be leaving myself open to a murder or a heart attack.”  Murder or a Heart Attack, The Old 97s

New York Mayor Michael Bloomberg has been on a crusade to upgrade the menus of the Big Apple.  He’s championed laws to ban trans-fats and  to post-calorie counts everywhere from fast-food joints to the Bronx shrine known as Yankee Stadium.  (The Babe would be both pleased and chagrined to learn that one of his favorite snacks, The Nathan’s hot dog w/kraut, is the leanest offering at the House That He Built).  Now, the diminutive mayor is angling to downsize sugary sodas by pushing an ordinance that would cap fountain drinks at 16 ounces.  Don’t fret, Big Gulp fans–7-Eleven somehow wangled an exemption to this Super Size Inquisition.  So the 64 oz Slurpee will endure–survival of the fizziest!

Another icon of New York’s food-obsessed landscape also stands oblivious to Mayor B’s Quixotic quest for a healthy electorate–The Second Avenue Deli.  That emporium of cured beef and rye bread has been serving up lipid-rich, gut busting delicacies since the 19th century.

Recently, the deli faced not the wrath of the multi-millionaire mayor B, but that of a disgruntled trademark owner located two thousand miles to the west in Las Vegas.  For years, that sin-city eatery, The Heart Attack Grill, has served-up a line-up of By-Pass Burgers (Single, Double, Triple–you get the idea).   And no Bypass Burger is complete without a helpings of “Flatliner Fries.”

High-rolling patrons seem to take to the dangerous fare, flocking the The Heart Attack to wager their longevity on the heady mix of beef, fat, flame, and bun.  News sources report that at least one patron suffered a heart attack after grappling with a Triple Bypass burger–a harrowing episode that nearly validated the restaurant’s slogan–“The Taste Worth Dying For.”

While its cardiac imagery may be facetious, the Heart Attack Grill gets serious when it comes to its trademarks.  It complained when the Second Avenue Deli began selling an “Instant Heart Attack” Sandwich.  And the Las Vegas outfit got apoplectic when it learned about the Deli’s plan to introduce a menu item called “The Triple Bypass.”

The Second Avenue Deli responded like any true New Yorker would–it sued, asking a federal court to give its morbid names a clean bill of health.

And in an order issued last week, Judge Paul A. Engelmayer largely sided with his fellow New Yorkers.  The judge ruled that the Deli could use its names, albeit with some  restrictions; only uses on its menus and print signage in Manhattan are kosher.

So the Heart Attack Grill’s attempted cardiac-themed arrest failed.

By the way, the Instant Heart Attack is a mountain of corned beef and pastrami served between two potato latkes.  The Triple Bypass will have three latke layers.  L’Chaim.

QUOTE OF THE DAY: “Mother Nature clearly intended for us to get our food from the “patty” group, which includes hamburgers, fish sticks, and McNuggets- foods that have had all of their organs safely removed.” Dave Barry

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