Just recently a colleague of mine here at the NTNU Technology Transfer Office came across a trade mark verdict in Danish Supreme Court. The Supreme Court sided with the national restaurant chain Jensen’s Bøfhus and ruled that its name is distinct, despite it being the most common name in Denmark. In summary Jensen’s fish restaurant, Jensen’s Fiskerestaurant in the northern Jutland, was taken to court by the national steakhouse chain Jensen’s Bøfhus, which argued that Jensen’s Fiskerestaurant infringed on the “distinctive trademark and reputation” of the steakhouse chain. The final verdict in this case was that the Supreme Court sided with Jensen’s Bøfhus and ordered the fish restaurant to pay about $35,000 to the steakhouse chain and an additional $25,900 in court costs for infringing the trade mark.
This is not the only strange trademark verdict that has been ruled over the last few months. The decision by the United States Patent and Trademark Office to cancel five trademark registrations for the Washington Redskins football team has focused on the impact of the ruling and is certainly a strange one. The USPTO questioned whether five trademarks granted to the Washington Redskins between 1967 and 1990 violated the Lanham Act, a 1946 law prohibiting trademarks that “may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs.” The Economist asks “How do you determine what counts as “disparaging”? Both the judge writing for the majority and the dissenter agreed that the standards of 2014 have no bearing on the answer. That is, if every Native American on the continent were to take offense at the term “redskin” today, that would not matter a whit. The relevant time period is the two-plus decades during which the trademarks were handed out. So the judges’ debate in nearly 100 pages of opinions turns on their evaluation of evidence showing that “redskin” was a disparaging term a few decades ago.”
In UK a Ukulele orchestra failed to persuade a judge that its reputation could be unfairly tarnished by it being confused with the United Kingdom Ukulele Orchestra, which is based in Germany but made up of British musicians. Ukulele Orchestra of Great Britain claimed that their German rival was infringing trademark rights. The dispute might end up in the court later this year.
KFC recently sued a pub for infringement of the name “Family Feast.” Somewhere in some shire or glen in UK is the Tan Hill Pub. On Christmas Day they offer something called the Family Feast, presumably because you eat an entire family. Somehow, KFC got wind of this and, terrified that a couple of English hicks would tear their fast-food empire apart brick by brick, sued the feast out of the Tan Hill Pub because they and only they owned the words “Family Feast”. Fortunately they reasoned and their good reputation did not loose their brains.
In another case Homer Simpson, rapper 50 Cent, and Mr. Big from Sex and the City make strange bedfellows, but all three arose in a trademark case won by a cigar maker. In Empresa Cubana Del Tabaco v. Tequila Cuervo S.A. Dec. V., the applicants used popular culture references to emphasize their Cohiba cigars’ status as an iconic brand. The case came about when Tequila Cuervo applied to register the trademark Lazaro Cohiba for its bottles of rum in 1996. Empresa Cubana Del Tabaco opposed the application due to confusion with its own registered Cohiba trademarks for tobacco products. In 2008, the trademarks opposition board rejected Empresa Cubana Del Tabaco’s grounds of opposition. The case went to appeal at the Federal Court in 2013. The applicant submitted new evidence that included rap lyrics and clips from TV shows and movies. As a result the court allowed the appeal after finding Cohiba to be “an iconic brand of cigar, associated with wealth and status.” The Federal Court’s consideration of the general public’s brand awareness is a departure from the usual attention given to the particular consumers of the goods in question.
There are about 260.000 Danes named Jensen, making it the most common last name in the country. On the Central Business Register website, one can find 249 business names with the word “Jensen”. I am not a Jensen my self, but perhaps all of those named Jensen should sue the Jensen’s Bøfhus for discrediting their good name?
If ever we are going to have a predicable court system it needs to be more focused on what the consumer think is justice and not what the lawyers are able to produce of abusing the justice.
Knut J. Egelie
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