In a twist of double irony, Techdirt hangs the pejorative “trademark bully” name on Ruby Tuesday, for copying the Rolling Stones’ song title and then bullying an Australian band from using it too.
While the reported facts are incomplete and insufficient for judging the merits, one of the lines from the restaurant chain’s demand letter caught my eye, as it appears to impute bad faith:
“[T]he knowing adoption of a mark intending to play off a well-established mark is among the most egregious of trademark violations, warranting courts to apply the harshest of consequences.”
If you’re humming to the lyrics “yesterday don’t matter if it’s gone,” please still consider reviewing an early blog post gem about imputing bad faith, When Intent Matters in Trademark Matters:
“One of the unfortunate aspects of trademark practice is the permission that exists in the law to challenge the motives and intentions of people.”
“[T]his permission is frequently abused . . . when the strength of a case doesn’t seem like enough without injecting an unhealthy dose of emotion into the matter.”
“Even the pejorative “trademark bully” label . . . garners public sympathy while imputing evil intentions to the trademark owner aiming to enforce its rights.”
“Less emotion and more objective facts should drive decisions on the question of likely confusion. If a case screams bad faith based on the objective facts, fine, make the case, but recognize this is likely a rare case.”
“Imputing motives and intentions to people is a messy, dangerous, and emotional business, trademark types should honor the law’s permission to to explore proof of bad faith intent, but not abuse it.”
In other words, initial demand letters shouldn’t attack motives, instead objective, unlawful actions.
And, those tempted to hang the pejorative trademark bully mantle before knowing the facts and law should pause and recognize that hanging the name and mantle also attacks motives.
Having said that, brands, when you really do overreach there are consequences.
Keep in mind, you might just find the infamous trademark bully mantle hanging around your neck, whether the actual merits of the facts and law warrant it or not.
Goodbye, Ruby Tuesday, in more ways than one . . . .