Dan Nielsen: The crazy world of trademark infringement

Dan Nielsen: The crazy world of trademark infringement


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Brand identity has become an increasingly busy battleground.

Coca-Cola’s swooshy script may be the most identifiable brand on the planet. It’s so ingrained in the public consciousness that when we see anything printed in that distinctive typeface, we instantly think of brown soda and bubbles tickling our throats. That’s the kind of instant recognition all brands crave.

Many companies have nurtured logos that sing loud and clear. But few approach the century-old Pavlovian response of the Coca-Cola script, particularly when it’s inside that big red dot.

One brand that has acquired an unmistakable brand identity over many decades — Harley-Davidson — was in the news last week.

The Wisconsin-based motorcycle company won a $19 million judgment against Gaylord-based shirt company SunFrog. At issue were several trademarked Harley-Davidson logos that have been sold through the SunFrog website by a variety of SunFrog partners. The federal judge who decided the case acknowledged that SunFrog’s meteoric growth — to $150 million in income after just four years in business — has made it difficult for the company to keep up with the daily logistics of effectively police the shirt designs submitted by and sold by thousands of partners.

But the judge ruled that, despite that difficulty, it is SunFrog’s corporate responsibility to ensure it doesn’t produce and ship merchandise decorated with unauthorized trademarks.

The Harley-Davidson company’s multiple logos have been trademarked for decades, and counterfeiters have been profiting from selling merchandise with those logos for almost as long. The motorcycle company has been battling copyright infringement wherever it finds it — on hats, cigarette lighters, belt buckles, leather jackets and who knows what else. The company includes a page in the customer service section of its website that deals specifically with counterfeit goods.

Knock-off Harley-Davidson boots were spotted for sale a decade ago at the annual Sturgis, North Dakota, motorcycle event. Knock-off Harley-Davidson leather jackets and bags roared across China a couple of years ago. The company’s legal department tracks down fake merchandise wherever it appears, and has a loyal customer base it asks to help in the chore.

SunFrog founder Josh Kent said his company is working on solutions to the problem of affiliate partners uploading logos they’re not authorized to use. Affiliates have uploaded millions of designs, most of them original and perfectly legal. Finding problems in that seemingly endless universe of designs is difficult. But Kent and SunFrog will need to find a way.

The court system in Europe took a bite into a trademark battle of another sort last week.

European courts have been considering rulings and appeals since 2002 about a trademark on the four-fingered shape of the Kit Kat candy bar. The European Union Intellectual Property Office, after considering the request for four years, agreed in 2006 to register the 3-D trademark to Nestlé for sweets, bakery products, pastries, biscuits, cakes and waffles. The next year, Cadbury (now Mondelēz) asked that the trademark be invalidated because “four trapezoid-shaped fingers” had not acquired distinctive character in all of the European Union’s member nations.

The chocolate-covered legal case has been working its way around the court system for more than a decade. An advocate-general of the Court of Justice of the European Union last week ruled that the intellectual property office needs to reexamine its 2006 ruling. If the decision is reversed, it would open the door for other candy makers to sell candy with four trapezoidal-shaped fingers — at least within the European Union.

Every business seeks distinctive identity. Local elements frequently work well for brand identities. But regional names can be overused.

I was talking a few weeks ago with a local business owner, and he mentioned that he had considered naming his business after Grand Traverse County. But he decided against it because he feared such a name would lead to confusion and muddy his brand identity. He said, in effect, that there are so many business names in the area that start with “Grand Traverse,” he worried another business with that name would get lost in the crowd.

The names Coca-Cola and Harley-Davidson don’t get lost, thanks in part to their well-established brand identities, and in part to their continuing legal efforts to protect those identities.

Even if the European legal system decides Nestlé can’t trademark one of its chocolate bars shapes, I really doubt the company ever will have trouble selling Kit Kat bars. I mean, give me a break.

Contact Business Editor Dan Nielsen at 231-933-1467 or dnielsen@record-eagle.com.

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About Craig Ballantyne 14306 Articles
I love anything to do with Harley Davidson and have two beautiful children and a beautiful partner. In my spare time i like building websites and love anything to do with the internet.

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