The Minnesota State Fair continues to provide endless blog fodder for those who care about intellectual property. Last week, we wrote about a State Fair vendor concerned about its claimed, but unarticulated “intellectual property.”
This week is a good reminder that brand owners have a lot to be concerned about what goes on with their brands in third party vendor booths, and they’d do well to deputize some brand marshals and sheriffs (not Barney Fife) to keep a look out for unauthorized trademark uses.
Employees and distributors also can be helpful eyes and ears in the marketplace, and the more they understand what the legal department is focused on, the more helpful they can be in flushing out potential trademark infringement targets. Trade shows also can be a fertile ground of trademark enforcement activity, and time well spent for members of the brand’s legal team too.
As a fan of any of these brands, would you bring Candles by Brandles to their attention? Would you pay $35 for a liquor candle with no brand on the glass? Are royalties due the brand owner?
The entire business model for Brandles is premised on this straightforward and seemingly simple principle: “Your Favorite Brand Made Into a Candle“:
According to the Brandles website: “Brandles are a green product and are all made from recycled bottles.” There is no disclaimer language anywhere on the site and no indication of whether these are licensed trademark uses. I’m guessing they are not and no royalties are being paid.
Either way, no matter how long this business has been ongoing, presumably a trademark type cleared this business model, the question is, on what basis? Nominative fair use? First sale doctrine? It’s not at all clear to me that either applies here, especially in the absence of any overt disclaimer. Moreover, it seems entirely plausible that consumers would mistakenly believe the brand owners authorized the use of the brands in connection with the candles, especially post-sale, and if so, a likelihood of confusion should be provable. If not, there’s always dilution.
What about these night lights, should brand owners be even more concerned about these analogous products, since they are electrical in nature — what if a defect results in a fire that burns down a home where people are injured or die?
Brand deputies, what say you, if you manage a brand, do any of these uses bother you?
Trademark types, would you hesitate to send a cease and desist letter on any of these?