Monday, May 10, 2010

Trademark Infringement Cheese?

Spotted Cow Cheddar from Brennan's in Madison, WI
You make the call. Is this trademark infringement?

Would you think that this cheese was:
a) made by a cheesery using Spotted Cow beer;
b) made in conjunction with, or by permission from, New Glarus Brewery; or,
c) not in any way related to New Glarus Brewery or Spotted Cow beer?

12 comments:

  1. If I knew of spotted cow beer then (a) but as I have never heard of it I would say (c)

    Karen

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  2. I would be most likely to think (a).

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  3. My gut reaction was (a).

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  4. Yeah, my first reaction was (a). But then I have to wondering if "Spotted Cow" is trademarked in and of itself.

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  5. Jason,

    Trademark law does not REQUIRE registration for rights. As soon as you start using a phrase or logo, you have trademark RIGHTS. Registration (the (R)), affords certain BENEFITS, but is not a pre-requisite to enforcement of rights.

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  6. It seems like "c" is the right answer to me. I just wish they get the Cow out in cans. Summer is here and I get tired of sneaking bottles out on the lake. If they were to get it out in a 24 or a 30 pack, it would be all good.

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  7. Isn't there a loophole when it comes to agricultural and animals? Moose drool vs. Moosehead? there is a coffee chain out west called Peaberry's and I worked for a shop named Peaberry's and had been told TMark didn't apply since it was a type of coffee bean.
    Is Wheat a term that could be covered by Tmark laws? that would certainly open a can of worms with Bud Light Wheat, wouldn't it.
    Anyway: i'd say C - since there is no mention of beer and no mention of new glarus. If it were made with beer (any beer) they'd throw it on the label. If NG brewing were involved there would certainly be some mention (or additional logo) of the brewery.
    cheers

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  8. Also going with A. Spotted Cow is well established in the area, as is Brennan's. They had to know it would cause a certain mental connection in locals.

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  9. C. There's a LOT of "spotted cow" companies out there, from an ice cream and coffee shop in the Northwest to soap to farms/beef. There's no logo, no connection with beer, etc. There's no way I'd confuse the two.

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  10. All I know is Brennan's is also HQ'ed in New Glarus.

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  11. Trademark law is based on the question: Is the existence of both marks being used on these products likely to confuse a potential customer into thinking that they come from the same source? So by seeing "Spotted Cow" would a consumer think that NG has a hand in it? Often, two unrelated products would not be confusing (e.g. American TV and American Airlines). But if those two products are used a lot together (e.g. chips and salsa), then confusion might arise. So it is isn't really and animal/agriculture thing, but more "Are these related?" thing.

    As for "wheat," it depends how it is used. If it is merely descriptive (wheat beer), then now, it is not protectable. If it is Wheat for my new clothing line, then it is arbitrary and is protectable. So is the name Spotted Cow just describing the look of the dairy product and is thus descriptive?

    This all boils down to the question: Is beer and cheese so close that a reasonable consumer would think that Brennan's and NG are somehow collaborating or are they far enough away that you are not confused and just think it is a clever name? Especially, since it kind of looks like the spots on a cow.

    Whew! TM 101 is now concluded.

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  12. Interesting. But as stated above, there are a lot of products name "spotted cow." I think it would be a tough argument to make. Now, if it was a beer or maybe if Brennan's was using something similar to the Spotted Cow beer label, well then maybe. But I don't think that's the case here.

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