How Nordstrom's And The USPTO Have Destroyed One Small Business

from the good-going dept

Jim Harper has the story of how the combination of a screwup at the US Patent & Trademark Office (USPTO) and a bunch of overly aggressive lawyers at Nordstrom's have made life incredibly difficult for a small business that has done everything right. That business, an "organic" lifestyle clothing company, filed for a trademark on those clothes using their company name: Beckons. After this small business filed for the trademark, but before that information was published, the big department store Nordstrom's filed for a trademark on the word "Beckon" for women's clothing. This happens at times, but the small company was there first, and the proper response from the USPTO is to reject the latter registration.

That didn't happen.

The USPTO flat-out screwed up and approved Nordstrom's application for publication (effectively moving the process forward). That meant that the small Beckons company had to spend thousands of dollars opposing Nordstrom's trademark registration. Thousands of dollars they shouldn't have had to spend if the USPTO had done its job right in the first place. Now, again, at this point, the facts are pretty straightforward, and even though the USPTO screwed up initially, the next step should be that the USPTO admits its mistake and everything moves on again.

But that's when Nordstrom's lawyers apparently got involved. Rather than recognizing the obvious truth (they have no claim on the mark Beckon and should give it up), they went into attack mode -- and tried to have the original Beckons trademark canceled, arguing that it really only was used for "yoga clothing" as opposed to a wider array of apparel. The case went to the appeals board -- meaning more legal costs for the small company. It was at this point, that the USPTO actually realized their original mistake, transferred Nordstrom's trademark app back to the original approver -- where it was rejected as being too similar to the Beckons clothing line. Again, at this point, despite the massive legal costs and mistakes and overly aggressive lawyers, you'd hope the matter would be done with.

No such luck.

Nordstrom's lawyers filed another complaint against the original Beckons trademark, claiming that they had abandoned their rights to the mark, once again sending everything to the Appeals Board (more legal bills!) only to have the filing dismissed, after it was realized that Nordstorm's original request to cancel the Beckons trademark was still out. And, in fact, that attempt to cancel the trademark is still active, but is in a long queue of cases to hit the Appeals Board -- meaning that the small company behind Beckons still has plenty more to spend on legal bills, and plenty of uncertainty concerning the simple trademark they filed for a few years ago.

While we often rail against problems with patent and copyright law, the purpose behind trademark law is entirely different It's a consumer or fraud protection law -- designed to make sure consumers aren't tricked into believing one product is associated with another company. Yes, it's all too often abused, but the small clothing company behind Beckons was doing exactly the right thing... and a mistake and some aggressive lawyering seem to have left them in a bad spot. The USPTO should fix things and Nordstrom's should drop its ridiculous vindictive legal attack against the much smaller company.

Filed Under: beckons, trademarks, uspto
Companies: beckons, nordstroms