Best of 2008: “Revival of the Dead” (July)
First posted on July 31st.
Just this morning a client told me about this company, River West Brands, that finds ways to obtain some semblance of the “rights” in abandoned consumer-products trademarks and “revitalize them for modern relevance, reconstruct the business model for today’s marketplace, and ultimately return these brands to the consumer.” So big of them! (For another post about the “brand equity” gold to be mined in the consciousness of America’s most narcissistic generation, see this recent item.)
Pam Chestek took a long hard look at this on her blog, Property, Intangible, and focuses on litigation between Smuckers, the one-time owner of one of those brands, PURITAN for cooking oil. River West, which had only filed an Intent to Use application, backed down.
Her analysis is well worth looking at, and she considers some of the questions this new “business model” raises in the context of what the think a trademark should be, and what perhaps it really is, in the 21st century:
If River West stays around long, it could generate some interesting new case law on trademark rights and abandonment.
And by trademark rights, Pamela surely means “trademark rights in gross” — the concept, rejected under classical U.S. trademark doctrine but insidiously becoming a fact of life, that there can be such a thing as trademark rights “in gross,” i.e., separated from the goods or services with which a mark is associated in the mind of the public.
It would seem that if we want to retain this fundamental feature of American trademark law, it is River West, and not (merely by some claim to ancient rights or pedigree) Smucker’s, that should — upon a proper finding of abandonment — be allowed the opportunity to “build” a new brand — on a framework of new use. That’s true even if it does so on a foundation abandoned by others.
UPDATE: John Welch reports on a TTAB case also implicating the concept of resurrection of “legacy” brands.
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