Tag Archive for: Trademark

Take-Two Opposes Trademark For An Entertainment Company Running An Axe-Throwing Facility

When it comes to my writing about trademark and intellectual property issues, there is perhaps no more flummoxing company than Take-Two Interactive. Why? Well, because the company is simultaneously the victim of a ton of stupid disputes, and also a purveyor of stupid disputes. On the one hand, we’ve defended Take-Two when it has been the victim of spurious claims brought against it by The Pinkerton Agency, Lindsay Lohan, and a handful of tattoo artists over athlete depictions in video games. On the other hand, we’ve slapped back at Take-Two when it has taken down modding tools for its games that have been around for years and years, or when the company decides to file lawsuits over fan-projects. The point is that when it comes to the pain brought by overly protectionist IP activities, Take-Two is a company that should know better, but acts as though it doesn’t.

This can often times go to ridiculous lengths, such as when Take-Two opposes the trademark for Rockstar Axe Throwing, LLC, because “Rockstar.”

Applicant Rockstar Axe Throwing filed its application in Class 41 for “Entertainment in the nature of axe throwing competitions; Instruction in the nature of hatchet and axe throwing lessons; Providing sports facilities for hatchet and axe throwing. Take-Two Interactive is “a leading worldwide developer, marketer, and publisher of interactive entertainment, including software, video games, computer games, mobile games,” and other goods and services. Rockstar Games is a subsidiary of Take-Two.

That paragraph is really all you need to know. These companies aren’t in the same industries, aren’t competing for customers, and the existence of the defendant is wholly unlikely to result in any customer confusion. Axe throwing: need we say more?

But, just to cover all of the bases, Take-Two also complains in its opposition about the Rockstar Axe Throwing, LLC logo.

Take-Two has marks that comprise or contain “the term ROCKSTAR and/ or prominently featuring the letter ‘R’ combined with a star design, used alone or with other words or designs…

The logos for the two companies aren’t similar. Like, at all.


Argue those logos are similar if you want, but you’re wrong, you know you’re wrong, and you’re probably in need of psychiatric care. On top of their being dissimilar, there is that whole “Axe Throwing” text right in the logo. If that isn’t enough to ward off anyone who might wander into an axe-throwing facility thinking it was associated with Grand Theft Auto, I can’t imagine what would be.

This, again, is where it gets really frustrating. There is zero reason for Take-Two to have undertaken this opposition. Zero. And yet it did, despite being on the receiving end itself of other ridiculous attempts at IP maximilism. Why?

Techdirt.

Burger King Fights Proxy War Against McDonald’s Over Hungry Jack Trademark Dispute

As one of the largest private employers in the world, it probably shouldn’t come as too big a surprise that McDonald’s is fairly protective of its trademarks. The company, large legal coffers though it has, is not undefeatable, however. It was only a year or so ago, for instance, that McDonald’s famously lost its “Big Mac” trademark in Europe when another chain, Supermacs, got it cancelled as it expanded into more European markets.

Well, now Mcdonald’s is facing another trademark issue in Australia. Down Under, there is a fast food chain called Hungry Jack’s, which is actually a part of Burger King. Burger King, of course, is McDonald’s chief global rival. There is something of a proxy war currently being waged over Hungry Jack’s “Big Jack” sandwich, with McDonald’s crying trademark infringement over its “Big Mac” trademark.

McDonald’s Asia-Pacific filed Federal Court proceedings on August 28 against Hungry Jack’s over its rival’s new burger trademark, which it claims is “substantially identical with or deceptively similar” to its own Big Mac trademark.

Hungry Jack’s has been the owner of the registered trademark “Big Jack” since November last year but McDonald’s says the trademark “is liable to be cancelled, and should in the exercise of the court’s discretion be cancelled” on a number of grounds, including that it is “likely to deceive or cause confusion” among consumers.

So let’s stipulate immediately that the rival for McDonald’s absolutely constructed a sandwich burger that has a lot of similarities to a Big Mac. The construction of the food is similar and the names both have the word “Big” in them, and then culminate in designators for the companies selling them, but those names rhyme. Big Mac. Big Jack. You get it.

So, with all of that stipulated, is this trademark infringement? Well, as always, that comes down to the question of whether there will be public confusion as to the source of the products. And Hungry Jack’s is apparently prepared to argue that there won’t be.

In a defence filed in the Federal Court on Friday, lawyers for Hungry Jack’s said consumers were “well aware” of the “competitive rivalry between Hungry Jack’s and [McDonald’s]” and it had not infringed the latter’s trademarks. Consumers would not be deceived into thinking the Big Jack was a McDonald’s product, they said.

Hungry Jack’s said it was entitled to use the Big Jack trademark, which played on the company’s name and the name of “its founder and current owner, Jack Cowin”. The word Jack was “closely associated by consumers with Hungry Jack’s’ goods and services”, the company’s lawyers said.

Add to the above that much of the complaints McDonald’s lodges aren’t relevant in a trademark dispute. The recipe for the sandwich doesn’t really matter, unless McDonald’s has trademarked this construction. If it has done so, it certainly hasn’t said as much. The word “Big” in the name of each product basically doesn’t matter, since it is both descriptive and in common use in trademarks all over the place. Instead, this is going to come down to whether “Jack” is too similar to “Mac”, sufficiently so to lead to public confusion.

Which is where Hungry Jack’s point is made. The rivalry between these two is as famous in Australia as Burger King versus McDonald’s is in America. Given that notoriety, and the simple fact that the dispute is over two words that very specifically designate the origin of the product, it’s hard to imagine the public being confused by any of this.

In other words, it would seem that McDonald’s would need to bring instances of actual confusion to court to make this lawsuit successful.

Techdirt.

Boston University Applies For Trademark On Offensive COVID-19 Awareness Slogan For Some Reason

Anyone who knows anything about me knows how much I both love and rely on profanity. Love, because profane language is precisely the sort of color the world needs more of. Rely on, because I use certain profane words the way most people use commas. So, when the courts decided that even the most profane words could be used in trademarks, I applauded. Fucks were literally given.

But not every piece of profanity deserves a trademark. And, while I again applaud Boston University’s decision to create a profane slogan around COVID-19 safety awareness for its student body, why in the actual fuck did the slogan have to be trademarked?

First, the context:

Boston University asked a group of communications students for help encouraging their peers to follow the school’s strict COVID-19 safety guidelines when they return to campus for the upcoming semester.

What it got back was a slogan that did not mince words.

Last week, BU officials filed a trademark application for the slogan “F*ck It Won’t Cut It” in order to promote “public awareness of safe and smart actions and behaviors for college and university students in a COVID-19 environment.” The filing first garnered attention after a trademark lawyer flagged it Tuesday morning on Twitter.

On the slogan, fuck yeah! In fact, pretty good for a Methodist school! But on the trademark application, what the fuck? I have serious questions as to whether the application even meets the criteria for a valid mark to begin with. How, precisely, is this being used in commerce? What good or service is this trademark supposed to identify a source for? Schooling? Not really. Healthcare? Nah. What precisely are we doing here?

“Our slogan is a powerful phrase that sparks a reminder for students to make safe choices at decision points each day, because saying ‘F-it’ to responsible protocols won’t keep us on campus,” Hailey McKee, a BU graduate student and public relations manager for the campaign, told the Boston Business Journal.

Well, sure, but why hell does this need to be siloed to Boston U via trademark? The school really doesn’t want its sister universities to be able to raise effective awareness using the slogan as well? Why not?

This feels ultimately like another long-tail outcome of permission culture and expansive IP enforcement, where an entity just defaults to wanting to claim IP on all the things. But the world would be better if leading institutions like BU… you know… did better.

Techdirt.

Stone Brewing Is Very Upset That People Don’t Like Its Trademark Bullying

It was just days ago that we were discussing Stone Brewing’s new campaign to jealously protect all uses of the word “stone” on alcohol branding. The one time advocate brewer claiming to stand up for craft brewing against “Big Beer” has since devolved into a corporate gorilla smashing up the USPTO to get trademarks cancelled and firing off cease and desist notices to small breweries. All this, mind you, as it also wages war on a second front with MillerCoors over Keystone’s rebranding as simply “Stone”. In that suit, MillerCoors complained that lots of breweries use the word “stone”, which appears to have set Stone Brewing off on its bout of aggression.

When Sawstone Brewing pushed back on a C&D and failed to work out an agreement with Stone Brewing, the latter initiated an attempt to cancel the former’s trademark. Sawstone complained publicly. And now Stone Brewing is busy complaining that the public is being mean to it as a result.

Stone Brewing published a lengthy statement on its website Monday night regarding its trademark dispute with Sawstone Brewing Co. in Morehead, Ky., saying that Stone has become the “subject of a vicious online harassment and smear campaign.”

In a newly published statement, Greg Koch, the CEO of Stone Brewing, acknowledged the company’s multiple trademark disputes, noting that “this kind of thing is just part of owning a brand name and a company identity,” but he claimed that Sawstone’s version of events is not how the situation unfolded.

We’ll get into that last bit in a second, but its worth pointing out that Koch’s claim that this is all somehow necessary due to owning a brand name is demonstrably false. MillerCoors itself argued against this, admittedly disingenuously. After all, while I think I’d argue that turning Keystone to Stone probably is too close to Stone Brewing so as to cause confusion, MillerCoors’ claim that lots of other breweries have used the word “stone” within their brands for a long, long time is absolutely true. And if Stone Brewing not only survived, but thrived, with all those other uses in existence, it negates completely the claim that Stone Brewing had no choice but to act as it has. Were that true, Stone Brewing wouldn’t be the behemoth it now is.

Now, on to Koch’s claim that Sawstone Brewing’s description of events wasn’t accurate… it’s all in the petty details. Essentially, Koch claims that this all started when Sawstone Brewing attempted to trademark its name and that Stone Brewing tried to amicably work out a settlement of the trademark issues over the course of a few months. In addition, Sawstone missed a couple of deadlines for which it had promised settlement proposals. And… that’s it.

All of which completely misses the point. Stone Brewing didn’t have to take this action at all. And while the reported claims of online stalking and threats sent to Stone Brewing are reprehensible if true, a public backlash to bullying behavior by a brewer that was supposed to be standing up to these types of corporate actions is perfectly valid. If Stone Brewing doesn’t like that version of the backlash, it can cease playing the bully. Unfortunately…

As for the trademark dispute, Koch said that Stone will not back down and that the decision will ultimately lie with the USPTO.

Well, then enjoy the continued backlash, you Arrogant Bastards.

Techdirt.