The Comer family, which hails from Ireland, took over a faux-Irish singles pub that had proved an ill fit for grown-up Decatur, Georgia. The Comers renamed the bar The Grange, after the term for a manor house in their native Ireland. The new, more community-oriented pub was an immediate hit.
A year later, they received a letter from the National Grange of the Order of Patrons of Husbandry, an agricultural advocacy group founded in the United States after the Civil War, asking them to cease and desist from the use of the name The Grange. The National Grange (as it is commonly known) felt that it was necessary to protect its trademark on the name "Grange," even though their name is clearly taken from the same agricultural tradition that inspired the Comers and that predates the American organization by hundreds of years. The Grange in Decatur was an independently-owned pub, while The National Grange is a national fraternal order that has no involvement in food or beverage service. The action was part of a directed effort by the organization to aggressively defend its trademark. In fact, last year it successfully forced Tyson Foods, the world's largest meat processor, to drop its plans for a line of "grange and grassland" meats.
The National Grange may look like the heroes in a fight against Tyson, but forcing a local pub to change its name? I wrote to the Communications Director of the National Grange to express my distaste for their actions, pointing out many of the obvious ironies in the situation, most significantly, that the National Grange was founded with the purpose of protecting the common farmer from monied interests of the banks and railroads, but was now pushing around a single, family-owned business that had no interest in the affairs of the larger organization, nor posed any threat to its reputation, mission, or identity.
The Grange's communciations director, Jennifer Dugent, replied with a standard response, explaining that U.S. trademark law places an "affirmative duty" on the trademark holder to enforce its trademark against other users. She explained that the Grange Public House could take the issue up with the Trademark Trial and Appeal Board, or agree to a "nominal" licensing agreement with the trademark holder. The Grange Public House decided to take a third route and change its name.
Surely, the precedent that requires the trademark holder to take legal action or risk losing its trademark is one of the most egregious examples of self-aggrandizement in the annals of law. The lawyer who won a tradmark decision on the argument that the plaintiffs had not filed enough lawsuits in the past and thus had lost their legal rights should have a statue at the Lawyers' Hall of Fame bigger than Louis Brandeis or John Marshall. This provision has created more business for lawyers than the whiplash diagnosis.
In no other instance of which I am aware in U.S. law is it necessary to show that you have taken previous legal action to justify a current legal action. If someone is infringing on your trademark, then it should make no difference whatsoever that someone may have previously done the same thing without being taken to court. If someone ripped you off and you didn't sue, would that be grounds for dismissing future lawsuits against someone who has wronged you? The thought is absurd.
This litigious abuse is not uncommon, and its effect is signigicant. In another recent beer-related case, Coca-Cola-owned Hansen Natural Corporation, makers of Monster Energy Drink, sued tiny craft brewer Rock Art Brewery of Morrisville, Vermont over its barleywine-style ale called Vermonster, claiming that somehow people would confuse a rancid, caffeinated soda with a hand-crafted, 10% alcohol, malted beverage that also references the name for something big and scary. Hansen eventually dropped the suit after much protest from the craft beer community, but had they pushed on, Rock Art could have lost a lot of money and its well-established product name.
Interestingly, in the case of copyright law, the titles of movies, books, or songs cannot be copyrighted. Thus, I can make a movie called Avatar tomorrow, and James Cameron can't touch me unless he can prove that my movie is unfair competition with his, something that obviously cannot happen. Why isn't this the test for a trademark violation, as well?
I understand that a business has a right to protect its brand. But a brand is more than a word; it is a product and an image and a set of defining characteristics. The word does not define the brand. And how can someone own words? If we cannot use the words that we have created to describe our world, we are prisoners of a proscribed reality, one in which the riches of language are owned by the highest bidder or the most ruthless goon. And we are all a little poorer for that.
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