Friday, October 23, 2009

Domestic Violence in the Big Easy

Trademark fights can get intense but usually not with so much colorful language.

We can Slap Ya Mama, but you better not Punch Ya Daddy.

At least, that's what the Walker & Sons spice company is saying to the Falcons.
See, they sell a spice blend called "Slap Ya Mama" and Falcon has just started selling his "Punch Ya Daddy" spice mix.
Boy, Cajun spices can be rough on the family unit.

I haven't found a copy of the Complaint, but I can see a couple of issues from the stories I've read. One is called dilution. Basically, W&S is saying their product is very well known, and if anyone were allowed to just come along and sell something so similar that people would think they made it, the value of their mark would be diminished. If someone produced a crappy product with such a name, the reputation of the famous maker would be hurt, even though they didn't make the bad product.
Of course the key word there is "famous." You have to have a famous mark to get dilution protection. But what's a famous mark? Well there's where the lawyers make their money.

Another issue is the obvious similarities of names: "(strike) Ya (parent)".
Unless it's a ubiquitous practice at Cajun barbecues for people to go around eating spicy food then playing pugilist with progenitors, I think this is a pretty clear win for W&S. If a name is confusingly similar it can be said to be infringing.

Finally there's trade dress. That's basically how your product will look when a consumer is shopping. Do you have a distinctive "style"? So basically they are saying that even if the names were different, the package of one looks an awful lot like the package of the other. I say this is true too. The primary color being yellow or white - those are the 2 "metals" in medieval heraldry which can be based with any color to be distinctive at a distance. I'm sure modern marketing design types have another name for it, but basically they are interchangeable in many instances. Then a color band at the top with the maker's name on it, the use of paired chili peppers around the title; the fonts may differ, but font and color don't seem enough to me.

I'd say this is an easy win for W&S, especially given they've been in business for more than a decade and Falcons is a newcomer.

The thing to remember in all of this is it all hinges on likelihood that a consumer will be confused as to the source of the product. On one level trademark is a consumer protection scheme.

Of course I could be wrong. Maybe family fisticuffs is the state sport of Louisiana and neither name is protectable for being merely descriptive.

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