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Franchise quality control finds its own level

Originally posted 2014-09-24 12:37:06. Republished by Blog Post Promoter

Glatt Kosher Subway Store ... not

Well, I told you I had some serious questions

UPDATE:  This is the story.

Putt this in your pipe and smoke it

Originally posted 2013-04-24 14:31:12. Republished by Blog Post Promoter

Putt Putt Fun CentersPutt-putt — miniature golf, right?

Yes, but, PUTT-PUTT® — registered trademark for miniature golf services!  Steve Baird explains:

So, I learned two things this weekend, Adam Scott is the first Australian to win the Masters, and “putt-putt” golf is a brand of miniature golf, not a generic designation for a type or category of golf game. In fact, I was surprised to learn that the brand is subject to federally-registered trademark rights, and for much more than mini-golf services, see herehereherehere, and here.

In the Putt-Putt v. 416 Constant Friendship decision, the court granted summary judgement in favor of Putt-Putt’s federal and Maryland State trademark infringement and unfair competition claims. The court basically found it unnecessary to hold a trial in order for Putt-Putt to win. Not only did the court find there to be infringement as a matter of law, it also found Putt-Putt to be a “strong” trademark.

Why the surprise? I grew up using and hearing the term as a generic reference, not a brand. Apparently 416 Constant Friendship couldn’t muster up enough evidence to even create a genuine issue of material fact on the question of validity. Survey evidence would have been interesting, but there was no mention of this type of evidence, the registrations appeared to carry the day on validity.

I’m surprised too.  And it’s a little troubling, as Steve seems to be saying, that the issue was decided on summary judgment.  Just as I said about the purported trademark for “ping pong” years ago, yes, you can have a trademark registration, so technically speaking you have a trademark unless and until someone pushes back in front of a judge or a jury, or both.  In the case of ping pong, which  is what everyone calls table tennis, I am certain that if that happened, that registration would be history.

So as I say, like Steve, I would have thought the same thing regarding PUTT-PUTT.  So what exactly did happen in that case?  It’s worth looking a closely at the opinion.

For one thing, it doesn’t appear that Putt-Putt, LLC was looking for trouble here.  This lawsuit was evidently not born of a cease and desist letter or some sort of enforcement campaign, but rather a trademark registration application by the defendant, 416 Constant Friendship LLC, for the mark “PUTT-PUTT FUN CENTER” for, well, miniature golf type stuff.  This terms is, as you can see on the screen shot above, how Putt-Putt brands its fun centers.  This brilliant move was made on March 5, 2012.

Dude.  Putt-Putt didn’t only already have half a dozen PUTT-PUTT trademarks, i.e., the ones Steve links to.  Putt-Putt had itself filed trademark application a month earlier for the mark … yes — PUTT-PUTT FUN CENTER — which was published for opposition the next July and added to the Register on October 9, 2012.

What were the Constant Friends thinking?  (Not even going to talk about the lawyer who filed that application — not today.)

Well, let’s take a step back. Read More…

Franchisor nightmare?

Originally posted 2011-08-01 21:56:30. Republished by Blog Post Promoter

DD logoOverlawyered reports that a Circuit Court has suggested there could be cases where franchisees can pick and choose the ingredients on a franchise restaurant’s menu:

“A discrimination lawsuit filed by a Muslim Dunkin’ Donuts franchisee who was not allowed to renew his contract with the chain because of a refusal to sell pork products can proceed, a U.S. appeals court ruled Tuesday[,]” [according to Reuters].  For many years the donut chain had permitted Walid Elkhatib to refrain from including bacon, sausage or pork in breakfast sandwich offerings, because of religious scruples, but in 2002 it insisted that he carry the line with meat included, and he sued on religious-discrimination grounds. According to the coverage, Circuit judge Ilana Diamond Rovner apparently found it significant that the donut chain had allowed some franchisees in the area not to carry the breakfast sandwiches, for reasons that included, e.g., limited space. It sounds, though, as if the deal that Elkhatib wished to carry forward was somewhat different: he wanted to go ahead and keep selling the sandwiches without putting meat in them, which would presumably have implications for what franchising strategists call the consistency of the customer experience.

There could be complicating factors present — see the comments at the post — but the idea that the requirements of a trademark licensing program can be tossed based on the spiritual or other motivation of the licensee could be a scary development for licensors.

UPDATE:  Or not.