DuetsBlog Collaborations in Creativity & the Law

Trademark Victims?

Posted in Branding, Food, Infringement, Marketing, Trademark Bullying, Trademarks, USPTO

Hardly a day goes by without the media reporting on some sort of trademark dispute. Enter the need for a winner and a loser, a bully and a victim.

You know the typical media drill by now, Goliath is the trademark owner and a guilty bully, and David, of course, is an innocent victim, lacking any personal responsibility whatsoever.

This week’s David, one of the most recent “victims” of so-called “trademark bullying” is the Sazerac Lounge in Grand Rapids, Michigan, apparently soon to be known as Reservoir.

The problem with the automatic victim label for the little guy is that the owner of any business — even a small business — bears responsibility for the name selected, and in this instance, even a free search on the USPTO database would have revealed The Sazerac Company, Inc., as the only owner of federally-registered trademark or service mark rights in SAZERAC: the mark being registered since 1955 for “alcoholic cocktails” — with a claimed first use date of 1895.

In terms of even minimal due diligence, a free USPTO search of the term also would have revealed the company’s federally-registered rights in SAZERAC for “restaurant services” since 2003, with nationwide constructive use rights dating back to 1999, and a claimed actual first use date of 1926. For goodness sake, even putting aside the multiple federal registrations in existence and a matter of public record long before the opening of the Sazerac Lounge some seven years ago, the dictionary even notes the trademark status of the term.

Maybe someone ought to update the slanted “bullying activities” section of the Wikipedia page for Sazerac Company to get the facts straight.

I’m all for supporting true victims, but more than big and little is required for a proper analysis to determine whether the tempting sympathetic label actually fits.