"Sriracha" may well mean "chili sauce" in other places, but not here, and with use over time, Mr Tran most certainly gained the "acquired distinctiveness" that would allow the registration and protection in the US of what may be a descriptive term in other places.
Ouch, amoshias, I was going for sarcastic, not sneering, and I actually like TD a lot so what you see as trolling I see as trying to widen the perspective here and spread some info. I have no idea how much Mr Tran knows about trademarks, but I do know enough to hold my own.
And while Mr. Tran has allowed sriracha to roam free in the world, bless his heart, to say that he is not "getting into the trademark game" would be incorrect. Mr Tran's still brands his products with label graphics and a bottle shape that are protected by registered US trademarks.
One doesn't need to file an application for the use of the term to be considered trademark use, regardless of how the esteemed Mr Tran viewed the name. He created a unique product, put a name on the product, consistently sold the product under that name, and in time his customers came to identify the name with this product of a certain flavor and quality - boom, a trademark is born.
Now once Mr Tran allowed others to use the same name on their products of varying quality and taste, customers could no longer trust that the name identified Mr Tran's unique product, and now his customers have to look for Mr Tran's unique label design and/or bottle shape, both of which Mr Tran has protected with trademark filings and does seem to defend consistently and regularly.
So yes, Mr Tran had created recognizable tradeamrks in his brand name, label design and trade dress, but he has chosen to allow his word mark to become generic and only defend his other IP.
"Chalk up another victory for Tran, who allowed the use of his brand name so widely that he's effectively protected against someone trying to come along and lock it up." - A novel way of looking at the loss of Mr Tran's once valuable trademark to genericide.
"Tran goes on to note his belief that more exposure through use of his product's name will mean even further growth." - It surely will mean more growth, and hopefully Mr Tran will see some of that growth himself. Hey, as long as Mr Tran is happy, good for him.
Your efforts to explain the law here are admirable, but it's a waste of time. There is a POV here that must be maintained and no ammount of logic or reasoned application of the law will make it through the filter. Hey, it gets them their clicks, but that dripping sound they don't want to hear about is the loss of credibility. Ah well.
"not even the freaking bowls in logos look anything alike!" - but the fact that both are black bowls full of noodles doesn't strike you as at all similar?
Indeed, your comment is spot on, but you won't get many positive responses here when you try to talk about basic trademark law concepts. One doesn't really have to go far beyond the headline (or the byline) to know where this would go.
I mean, it really doesn't matter that FAT and CHUBBY are synonyms, or that both logos are similarly shaped black bowls full of noodles, or that the new business is opening in close proximity to the first business, right? How could anyone possibly confuse the two?
It's unfortunate that you don't recognize the effect that the omissions have on the article, and the teenie bit of credibility it drains from the TD reservoir. The subject may rank low in the grand scheme of IP problems, but the story does highlight some of the issues I have with TD lately. Hopefully those issues will be limited to stories about beer.
Sorry, I think I misunderstood the question. Use of a mark is essential for gaining trademark rights, but as John says government entities are allowed to register trademarks even when they aren't being used for commercial purposes.
I'm actually glad we don't have the public entity category thing here in the US. Those marks get cited against new applicants even if the goods and services are completely different. Worse, the marks remain perpetually as applications and never register (I guess because no use is required and renewal would be impossible) so they stay active on in the Canadian database long after the entity has stopped using them.
"Portland, a city, initially sent a cease and desist letter to Pabst Brewing Co." - there were a number of pertinent events that occurred prior to the C&D, the most important being that Pabst submitted their design to Portland for approval, which is not even mentioned here.
"one is a god damned city and the other is a brewery." - as mentioned, the design in question is for music festival in the city of Portland, not a brewery. When looking at the question of confusion, that matters.
"first off, they're obviously similar. So similar that moronic visitors or residents of the city of Portland will somehow think that Pabst bought their town, or vice versa? Probably not." - Pabst created the design with the Portland sign in mind, an homage perhaps, and submitted for permission from Portland to use the ad. The act of Pabst seeking permission is acknowledgement that the designs are similar. It may be moronic to think Pabst bought the city, but it would not be a jump to think that the city sponsored, or was somehow associated with, the festival. Further, when a sponsor's product is for adults only, any association of the event with the city of Portland may raise even more concerns.
"It may be that the city had planned on using images of the sign on shirts and clothing and the like, but even if that's the case, it wouldn't conflict with Pabst putting on a concert. Pabst and the city of Portland aren't competing with one another in any kind of marketplace, so the whole dispute was fallacious to begin with." - Saying they aren't competitors is as misleading as saying that no one will confuse the city with the brewery. We’re not talking beer or t-shirts, were talking about Pabst's use of a design that they acknowledge is based on an iconic design owned by the city of Portland for use at an event within that same city.
There are more than enough trademark owners who abuse the system and overreach to fill these pages over and over. In this case it seems like key facts were left out, which ends up portraying a reasonable effort to balance IP rights and public use as an overreach by a trademark bully.
The most interesting thing that I took from this is that Portland apparently has a process in place to grant permission to private parties who want to incorporate the city’s iconic images into their advertising. That seems unique and forward thinking, and something that TP and its readers could really support.
The US doesn't have anything like the kind of protection granted for "public authority" trademarks like Canada grants under Section 9(1)(n)(iii).
However, the US follows common law, which means there are certain rights gained simply by using a trademark in the US without having to file an application or registration. How the Portland mark is actually "used" in this case is subject to debate.
Does Portland actually own a US registration for the design? If they don't they should consider filing an application.
Oy! What is left out of this story really does put Portland in a pretty bad light, and that strikes me as unfair.
Many factors make the two signs quite similar, the use of a four-legged horned animal jumping upwards to the right, above the outline of the state, in a very similar font. But that really doesn't matter a lick because Pabst has essentially admitted that the two designs are similar when they asked the city of Portland to approve the ad.
From the linked story, Pabst "created its own likeness of the sign" which is an "iconic sign" to the folks in the area, and followed Portland's "process to authorize using the sign in media, promotional materials or other causes". In filing that application Pabst is acknowledging publically that what they have created is a "likeness of the sign". That would likely give Portland all they needed in court to be successful.
The Pabst ad is not an ad for a brewery, it is an ad for an event taking place in the city of Portland. If such an event uses a likeness of a sign known to the people of Portland as officially representing the city of Portland some may mistakenly believe that the event is sponsored or approved by the city of Portland.
TD made similar mistakes with the Long Trail beer label story too. Is there something about beer trademarks that make TD writers get loopy?
My first thought was that it was a dig on all the back doors the NSA slips/forces/coerces into software and systems that can also allow the bad guys in. Regardless, this seems like a sentence that is open to a number of interpretations, and to spend the time calling it out and dissecting it strikes me as a bit silly.
I agree. In this context it seems like a fitting response to turn off the spigot. But in the context of a monopoly or near monopoly, Google throwing its weight around and punishing anyone who dares suggest they pay for some form of content might not be such a good idea.
Coke is walking a fine line with this one, or talking out of both sides, depending on your POV.
In this case they claimed that ZERO is descriptive, which allowed them to defend the infringement claim, but they also maintain the claim that the billion's they spend on advertising and sales gives the mark the acquired distinctiveness they need to claim their use of ZERO as a trademark. This case was more about the lack of real use by the Naturally Zero people.
The real battle over ZERO is Royal Crown's opposition to Coca-Cola's ZERO marks, which may actually be decided soon, after seven years of battling. Royal Crown claims, correctly, that ZERO is descriptive of no calorie or zero calorie beverages, and I really hope they win.
Recent research suggests that a small percentage of people have the genetic make up that causes cilantro to smell like soap. My wife has said for decades that cilatro smelled / tasted like lemon Dawn. Apparently she's not the only one who thinks so.
Before I give my two cents…I work in IP. I love Techdirt. I’m also usually okay with the general anti-IP view of writers and commenters here. Often it is justified, sometimes not, but I’m love that the Techdirt is here to challenge the system on a daily basis.
That said, this is one of those Techdirt posts that make me cringe. Beside the legal aspects that are glossed over, the needless comments about how dumb one would have to be to confuse the two brands make the writer seem clueless on the subject matter. There are so many good examples of IP overreach and IP abuse out there, but this is not one of them. The writer is so cock sure in his comments, but just plain wrong about the subject matter.
There are several aspects common to both designs. Both feature a hiker, within a colored circle, and the colors used in both designs are almost identical, though used in different places within the design. That alone would probably give Long Trail the win. But you also have the can colors that are nearly identical, gold and green, and the print colors of red and white. The similar trail/hiking subject matter and the fact that the offending beer is part of a “Trail Series” go a bit further to cement the issue.
It doesn’t matter that the hiker guy is generic looking, or similar to some other logo used by the Park Service, or any other products. A hiker might be generic for camping equipment or trail gear, but it is not generic for beer. Long Trail has an established history of using a hiker design on beer products, in these colors, with no previous coexistence with other beers using such images and colors. They have several US registrations that feature the hiker design and these colors (thus the treble damages if it goes to Federal court). Whether folks like it or not, Long Trail owns the hiker image for beer and they’d be stupid not to protect it.
Long Trail may not currently sell their products in areas where Bent Paddle sells their products, but they do supply their beer to distributors in other state in the US, establishing inter-state commerce. Long Trail may well sell their beer in other locations in the future and if they don’t challenge Bent Paddle now it might come back to bite them if they want to expand their business.
Long Trail is correct to take action and they will prevail in this case, either in court or more likely in settlement. Bent Paddle either didn’t do enough research to see what else was out there before they launched, or they’re intentionally trading on Long Trail’s goodwill. I would venture a guess that Long Trail tried to soft approach and asked Bent Paddle to voluntarily change their design, but were ignored of rebuffed. Either way, if Bent Paddle has good counsel they will settle and make some changes to their can design.
Don't detroy it. There are countless security experts out there that would LOVE to get a look at that machine.
However, now that this has gone public it will be interesting to see if it even gets delivered. If it's still in NSA HQ then you can bet they will undo whatever they have done before it gets sent.
On the post: Sriracha Boss On Trademark: Mmmmm, No Thanks
Re: Re: Re: Re: Packaging
"Sriracha" may well mean "chili sauce" in other places, but not here, and with use over time, Mr Tran most certainly gained the "acquired distinctiveness" that would allow the registration and protection in the US of what may be a descriptive term in other places.
On the post: Sriracha Boss On Trademark: Mmmmm, No Thanks
Re: Re:
On the post: Sriracha Boss On Trademark: Mmmmm, No Thanks
Re: Re:
And while Mr. Tran has allowed sriracha to roam free in the world, bless his heart, to say that he is not "getting into the trademark game" would be incorrect. Mr Tran's still brands his products with label graphics and a bottle shape that are protected by registered US trademarks.
On the post: Sriracha Boss On Trademark: Mmmmm, No Thanks
Re: Re:
Now once Mr Tran allowed others to use the same name on their products of varying quality and taste, customers could no longer trust that the name identified Mr Tran's unique product, and now his customers have to look for Mr Tran's unique label design and/or bottle shape, both of which Mr Tran has protected with trademark filings and does seem to defend consistently and regularly.
So yes, Mr Tran had created recognizable tradeamrks in his brand name, label design and trade dress, but he has chosen to allow his word mark to become generic and only defend his other IP.
On the post: Sriracha Boss On Trademark: Mmmmm, No Thanks
"Tran goes on to note his belief that more exposure through use of his product's name will mean even further growth." - It surely will mean more growth, and hopefully Mr Tran will see some of that growth himself. Hey, as long as Mr Tran is happy, good for him.
On the post: Left Shark Bites Back: 3D Printer Sculptor Hires Lawyer To Respond To Katy Perry's Bogus Takedown
Re: Re: Re: Re: Re:
But good for you for trying.
On the post: Chubby Vs. Fat: The Pointless Noodle Trademark War
Re: Re:
"not even the freaking bowls in logos look anything alike!" - but the fact that both are black bowls full of noodles doesn't strike you as at all similar?
On the post: Chubby Vs. Fat: The Pointless Noodle Trademark War
Re:
I mean, it really doesn't matter that FAT and CHUBBY are synonyms, or that both logos are similarly shaped black bowls full of noodles, or that the new business is opening in close proximity to the first business, right? How could anyone possibly confuse the two?
I'd love to see a follow-up on this.
On the post: Portland (The City) And Pabst (The...Beer?) Cease Battling Over Unnecessary Trademark Dispute
Re: Re: Re: Re:
On the post: Portland (The City) And Pabst (The...Beer?) Cease Battling Over Unnecessary Trademark Dispute
Re: Re:
I'm actually glad we don't have the public entity category thing here in the US. Those marks get cited against new applicants even if the goods and services are completely different. Worse, the marks remain perpetually as applications and never register (I guess because no use is required and renewal would be impossible) so they stay active on in the Canadian database long after the entity has stopped using them.
On the post: Portland (The City) And Pabst (The...Beer?) Cease Battling Over Unnecessary Trademark Dispute
Re: Re:
"one is a god damned city and the other is a brewery." - as mentioned, the design in question is for music festival in the city of Portland, not a brewery. When looking at the question of confusion, that matters.
"first off, they're obviously similar. So similar that moronic visitors or residents of the city of Portland will somehow think that Pabst bought their town, or vice versa? Probably not." - Pabst created the design with the Portland sign in mind, an homage perhaps, and submitted for permission from Portland to use the ad. The act of Pabst seeking permission is acknowledgement that the designs are similar. It may be moronic to think Pabst bought the city, but it would not be a jump to think that the city sponsored, or was somehow associated with, the festival. Further, when a sponsor's product is for adults only, any association of the event with the city of Portland may raise even more concerns.
"It may be that the city had planned on using images of the sign on shirts and clothing and the like, but even if that's the case, it wouldn't conflict with Pabst putting on a concert. Pabst and the city of Portland aren't competing with one another in any kind of marketplace, so the whole dispute was fallacious to begin with." - Saying they aren't competitors is as misleading as saying that no one will confuse the city with the brewery. We’re not talking beer or t-shirts, were talking about Pabst's use of a design that they acknowledge is based on an iconic design owned by the city of Portland for use at an event within that same city.
There are more than enough trademark owners who abuse the system and overreach to fill these pages over and over. In this case it seems like key facts were left out, which ends up portraying a reasonable effort to balance IP rights and public use as an overreach by a trademark bully.
The most interesting thing that I took from this is that Portland apparently has a process in place to grant permission to private parties who want to incorporate the city’s iconic images into their advertising. That seems unique and forward thinking, and something that TP and its readers could really support.
On the post: Portland (The City) And Pabst (The...Beer?) Cease Battling Over Unnecessary Trademark Dispute
Re:
However, the US follows common law, which means there are certain rights gained simply by using a trademark in the US without having to file an application or registration. How the Portland mark is actually "used" in this case is subject to debate.
Does Portland actually own a US registration for the design? If they don't they should consider filing an application.
On the post: Portland (The City) And Pabst (The...Beer?) Cease Battling Over Unnecessary Trademark Dispute
Many factors make the two signs quite similar, the use of a four-legged horned animal jumping upwards to the right, above the outline of the state, in a very similar font. But that really doesn't matter a lick because Pabst has essentially admitted that the two designs are similar when they asked the city of Portland to approve the ad.
From the linked story, Pabst "created its own likeness of the sign" which is an "iconic sign" to the folks in the area, and followed Portland's "process to authorize using the sign in media, promotional materials or other causes". In filing that application Pabst is acknowledging publically that what they have created is a "likeness of the sign". That would likely give Portland all they needed in court to be successful.
The Pabst ad is not an ad for a brewery, it is an ad for an event taking place in the city of Portland. If such an event uses a likeness of a sign known to the people of Portland as officially representing the city of Portland some may mistakenly believe that the event is sponsored or approved by the city of Portland.
TD made similar mistakes with the Long Trail beer label story too. Is there something about beer trademarks that make TD writers get loopy?
On the post: Help Create Some Neil deGrasse Tysonisms: Tautologically Meaningless Solutions To All The World's Problems
Open to interpretation
Regardless, this seems like a sentence that is open to a number of interpretations, and to spend the time calling it out and dissecting it strikes me as a bit silly.
On the post: Google Removes News Snippets From Complaining Publications In Germany; Publications Claim It's 'Blackmail'
Re:
On the post: Coke Zero Wins Trademark Dispute With Naturally Zero Water
In this case they claimed that ZERO is descriptive, which allowed them to defend the infringement claim, but they also maintain the claim that the billion's they spend on advertising and sales gives the mark the acquired distinctiveness they need to claim their use of ZERO as a trademark. This case was more about the lack of real use by the Naturally Zero people.
The real battle over ZERO is Royal Crown's opposition to Coca-Cola's ZERO marks, which may actually be decided soon, after seven years of battling. Royal Crown claims, correctly, that ZERO is descriptive of no calorie or zero calorie beverages, and I really hope they win.
On the post: Breweries Fight Over Trademark Of Hikers That Don't Look Alike
Re: Re: Re: Re: Meh, beer, who gives a frak?
On the post: Breweries Fight Over Trademark Of Hikers That Don't Look Alike
Re: WHAT IT LOOKS LIKE ME
On the post: Breweries Fight Over Trademark Of Hikers That Don't Look Alike
I guess I need medical help
That said, this is one of those Techdirt posts that make me cringe. Beside the legal aspects that are glossed over, the needless comments about how dumb one would have to be to confuse the two brands make the writer seem clueless on the subject matter. There are so many good examples of IP overreach and IP abuse out there, but this is not one of them. The writer is so cock sure in his comments, but just plain wrong about the subject matter.
There are several aspects common to both designs. Both feature a hiker, within a colored circle, and the colors used in both designs are almost identical, though used in different places within the design. That alone would probably give Long Trail the win. But you also have the can colors that are nearly identical, gold and green, and the print colors of red and white. The similar trail/hiking subject matter and the fact that the offending beer is part of a “Trail Series” go a bit further to cement the issue.
It doesn’t matter that the hiker guy is generic looking, or similar to some other logo used by the Park Service, or any other products. A hiker might be generic for camping equipment or trail gear, but it is not generic for beer. Long Trail has an established history of using a hiker design on beer products, in these colors, with no previous coexistence with other beers using such images and colors. They have several US registrations that feature the hiker design and these colors (thus the treble damages if it goes to Federal court). Whether folks like it or not, Long Trail owns the hiker image for beer and they’d be stupid not to protect it.
Long Trail may not currently sell their products in areas where Bent Paddle sells their products, but they do supply their beer to distributors in other state in the US, establishing inter-state commerce. Long Trail may well sell their beer in other locations in the future and if they don’t challenge Bent Paddle now it might come back to bite them if they want to expand their business.
Long Trail is correct to take action and they will prevail in this case, either in court or more likely in settlement. Bent Paddle either didn’t do enough research to see what else was out there before they launched, or they’re intentionally trading on Long Trail’s goodwill. I would venture a guess that Long Trail tried to soft approach and asked Bent Paddle to voluntarily change their design, but were ignored of rebuffed. Either way, if Bent Paddle has good counsel they will settle and make some changes to their can design.
On the post: NSA Interception In Action? Tor Developer's Computer Gets Mysteriously Re-Routed To Virginia
However, now that this has gone public it will be interesting to see if it even gets delivered. If it's still in NSA HQ then you can bet they will undo whatever they have done before it gets sent.
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