Trademark—protect it or lose it

Two years ago when a small pub in the St. Louis area began selling a drink with the same name as a drink sold by Starbucks, a cease & desist letter was sent to the pub by Starbucks’ attorneys. Letters like this are sent all the time and it’s pretty much standard procedure as a first step in the world of trademark protection. That would have ended the matter except the pub guy decided to write a sarcastic response to Starbucks which then got media attention and went viral. The little firestorm that erupted over Starbucks’ “heavy-handedness” made it sound like Hitler invading Poland: Starbucks juggernaut attempts to crush poor defenseless pub owner!

Of course, public opinion sided with the pub owner because, (A) he was the underdog and, (B) big corporations are always evil, just like in the movies. (Moral: if you are in business stay a mom-and-pop operation and don’t incorporate).

As a designer, I work with intellectual property all the time. I know why trademarks are vigorously protected by their owners. It’s because trademark protection doesn’t always last if it’s not defended. It’s not like copyright protection, which is automatic and you don’t have to do anything for it to stay in force. And for many companies, their trademarks are the most valuable assets they own. Think about Coca Cola, or Harley-Davidson. The Coke logos are surely worth billions. And Harley? Are their motorcycles really any better than anybody else’s? Their value is in the name more so than the product.

There is a long list of trademarks that have lost protection and have become generic: Hula Hoop, Escalator, Cellophane, Dry Ice, Heroin, Kerosene, Laundromat, Linoleum, Thermos, Trampoline, Videotape, Touch-tone, Yo-yo, Zipper.

Aspirin is generic in the US but still a protected trademark in Canada and Germany.

Many trademarks are being used more and more as generic terms and could be in danger of losing protection: Xerox, Band-Aid, Ping Pong, Astro Turf, Bubble Wrap, Chap Stick, Crock-Pot, Sheet Rock, Skil Saw, Dumpster, Fiberglass, Frisbee, Freon, Jet Ski, Kleenex, Memory Stick, Popsicle, Play-Doh, Plexiglas, Post-It, Q-Tips, Rollerblade, Scotch Tape, Sea-Doo, Shop Vac, Super Glue, Styrofoam, Tarmac, Teflon, Tupperware, Tylenol, Vaseline, Velcro.

It takes effort and constant vigilance to protect a trademark, especially as it becomes more and more well known. The Starbucks lawyers did not use a big stick. They used a little stick. The first stick, really.

And what about the pub owner, poor thing? I think he knew exactly what he was doing. He got the public reaction he was hoping for. He knew what fools people can be (remember: he owns a bar), and that they can always be counted on to be suckers for the little guy. And he manipulated the media perfectly, including NPR. The publicity he received for his tavern was far more than he could have paid for. This guy’s talents are being wasted behind the bar. He needs to be in marketing, or politics. And, of course, Starbucks got what it wanted, too. The pub owner stopped using the drink name in question. This was a win-win for everybody.

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