Q the Lawyers

Q
Q: Send in the Quowns

A report in the online Financial Express says that Nissan is suing Audi over “Q.” To wit: “We are seeking to bar Audi from using any names that could infringe on Nissan’s right over the letter ‘Q’,” she added.

Quazy. It’s been ten years since the Supreme Court said that if you establish secondary meaning, you can have trademark rights in a certain color. But I guess when you can’t win back your own name in trademark litigation, you may as well try for an entire letter of the alphabet.

According to Marty Schwimmer, cited in this article, Nissan could win if it convinces the court of its right to a “family” of trademarks. This “family” of trademarks concept is another judge-created doctrine that, in my humble mind, is a troubling per se species of trademark dilution that is allowed in through the infringement door and therefore avoids the more stringent test (e.g., fame, commercial use) required in order to prove (federal) dilution — tests which are about themselves about to become even weaker if Congress again asks only “how high?” to trademark owners in this “branders take all” environment.

Not to worry, though. If Nissan wins, there will still be 25 letters left for everyone else.

UPDATE:  Settled out of court.

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Ron Coleman

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