Small Businesses Need to Know about IP: An Example

14 October 2009

Last week there was a really big football game on tv.  American football.  A match between two long-standing rivals, but with an extra twist this year.  The good team’s traitor star-player left and through some manipulative maneuvering, made his way to the evil team.  It was the first time the traitor had ever faced his old team.  It was a brutal game.  The Ippers, one of whom you can tell was quite invested in this match-up, had to venture out into the land of local pubs in order to watch the game.  (It was only available on cable here.)  While out at the pub, they encountered a little trademark issue.

The bartender was sampling the wares of a local gentleman who produces and sells body oils.  She explained he’s a regular customer and often comes in to share new additions to the product line.  The gentleman carried two large, black zippered cases filled with vials.  The vials were filled with liquids of different colors, each with a white label identifying the scent inside. 

scent listWhile the bartender was busy sniffing various bottles, the gentleman handed out a yellow flyer with information about his oils.  The company’s clever and catchy name was displayed in large type across the top, followed by “Body Oils for men and women.”  At the bottom, the prices, ranging from $5.00 to $35.00 depending on the size of the bottles.  In the middle was a list of the hundred-some scents he offered.

Some of the scent names on the list were merely descriptive: Red Rasberry [sic], Coco Mango, Kiwi Strawberry.  Others were suggestive, Golden Goddess, T-Shirt and Panties, Walk Like She Taken.  And then, there were the problem ones.  Two different kinds of problems.  First, well-known brands of perfume and cologne: Juicy Couture, Dolce & Gabbana, Cool Water.  Then, names of famous people who probably have nothing to do with this gentleman’s products: Barack Obama and Michelle Obama.  And the names of plenty of people who have their own perfume and cologne products that bear their names.

This gentleman is a prime example of someone who needs intellectual property help.  Not only has he opened himself up to a huge amount of liability for trademark infringement, passing off and potentially right of publicity, the gentleman also has plenty of his own intellectual property to protect.  He has his own company name, many very creative names on his scents and possibly the scents themselves.  [Protection of scents is highly debated in the world of IP, see IP Review for a more in-depth discussion of this.]

Unfortunately, there are a lot of people out there who don’t recognize the rights they might have or the rights others do have.  They do not know that attorneys are there to help them with these types of issues, and they won’t find out.  When they do meet with an attorney, it’ll be one representing those big companies whose trademarks are being infringed.  Hopefully, it’s only in the form of a cease and desist letter.


goldenrail would like to thank Cathy Gellis for her assistance with this post.


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