Has trademark protection gone too far?

Question

In my Sunday paper was an article: A Sam Adams is running for Mayor in Portland Oregon. Well, he's in trouble with the big Sam Adams Brewer over the use of the name and his signs and website advertising his candadicy. Sam Adams response (the mayoral candidate was, "What! I've been using my name since 1963. Before they were even in business."
All I can say on this is it's one of the most absurd legal disputes I have ever heard of. But with your answers, I sure would like to hear of others.

Answer 1

The copyright and trademark laws say that you have to make an attempt to protect your trademark.

So, for instance, Coca Cola used to have people who would go into restaurants and soda fountains and ask for a 'Coke', and if they were served Pepsi they'd report them to the company who would send them a threatening letter. Because of that, sometimes these days you ask for a Coke and the waitress will say 'Is Pepsi alright?'

The Xerox company gets upset when people use 'xerox' with a small 'x' to mean any photocopier or photocopy. I worked for a company called Quantum that made the first computer hard drive on a card. They called it the 'Hardcard', and after that we were all told to report it when we saw magazine ads advertising other companies' competing products calling them 'hardcards'.

There are many words in the English language that used to be brand names. They weren't protected, people started using them as generic names for the product, and they were lost as brand names. Yoyo, kerosine, speedometer, etc.etc.

So perhaps Sam Adams the brewery is only thinking that if they don't at least make an attempt to protect their trademark, next year there might be a Sam Adams whiskey or rootbeer and they won't be able to protect themselves. The name "Sam Adams" is almost public domain, after all, being only the name of an early American patriot.

Answer 2

No matter if there is a trademark or not, a person may use their own name on their business.

That McDonald's case mentioned by another answerer was decided FOR the old man, not against him. And he did indeed have a restaurant called McDonald's --- named after himself. It was a sit-down, order from the menu, and be served by waitresses type however --- it didn't serve fast food hamburgers, etc. If I remember the case correctly, the name was "McDonald's Cafe".

The Sam Adams case will be best left alone by the brewery as they cannot hope to prevail. The mayoral candidate is in an even better position than the man named McDonald because his business is in no way related to a brewery.

Answer 3

Yes, after the patent expires its inventions and designs are public domain and can be freely used by anybody, at least to the extent there are not other patents still in force on the same product. The brand name on a product may be protected under state or federal trademark laws, which have different rules for expiration (typically requiring proof of intentional abandonment by the original user). Design patents expire in 14 years, which is usually less than the 20 years for an invention. However, the identical appearance of a recognizable design may have acquired "trade dress" protection as well, like trademark, and cannot be used in a manner that raises a "likelihood of confusion" with the original. Pharmaceutical competitors often plan their OTC offerings to hit production the day after the original patent expires and the patent holder will spend millions of dollars to litigate the very last day (e.g., when Priolsec patents were litigated and appealed it was making sales of approximately $3M per day.)

Answer 4

It is ridiculous, but I think even the brewing company realizes that -- they sent the letter based on the domain name (samadamsformayor.com) without looking into it further and didn't know there really was a Sam Adams running for mayor of Portland. I expect this will be settled without the courts.

Answer 5

I cannot see any way a business can interfere with a person who's legal name is being used. There may be a problem if the candidate uses anything close to the manufacturers trademarks or marketing language.

Answer 6

McDonalds do the same thing. There was an old man, an old man who had a little cafe he named after himself as his last name was the same as the fast food giant, they sued him and made him change his name.

BTW, their statement that they put in a pound of hops per so much beer is a dumb statement. Hops are measured by their bitterness and in some years, they may be stronger and others, milder. So, the weight of the hops would vary. I don't think their stock is doing very well either.