The Lonely Maytag Trademark

The Associate Press reports:

DES MOINES, Iowa Maytag may have to change the name of a new kitchen appliances. That’s after a small business owner in New Hampshire won a trademark infringement case against the Iowa appliance maker. A federal jury in Concord, New Hampshire, has found in favor of Attrezzi Fine Kitchen Accessories. Maytag’s Jenn-Air division rolled out its Attrezzi line of mixers and blenders in 2003. The kitchen store opened a year earlier, and owner Jennifer Slade sued. She wanted one and a half million dollars — half of Maytag’s revenue on Jenn-Air Attrezzi products. However, the jury awarded Slade only 54-hundred dollars. That’s amount of money it cost her to file her challenge. Maytag’s attorney says the company will ask the judge to reconsider the verdict.

That’s the whole item. There ain’t no more.

But this little piece teaches a lot of practical trademark law! I haven’t seen the primary materials and don’t know more than the report above says. But here’s some of what we can learn from it:

1. Trademark clearance does not mean “not having to say you’re sorry.” Big companies have huge ramp-up periods between the clearance of a new product line or other trademark occasion (that being per the best case scenario — where they really actually clear the mark before getting the marketing machine going) and when a product hits the market for purposes of “first use in commerce” — in other words, when priority is earned. (In trademarks, priority of use is the Holy Grail.) Yet despite their fancy paralegal-filled in-house departments, they frequently do not keep checking between that first email from the boys in marketing and that first use. Result: Someone else sneaks in there, or perhaps was already snuck in there and just missed getting picked up by the search report. Millions are spent on brand-building and even trademark registration before the first use in commerce of what turns out to be someone else’s trademark. Alternative scenario: The product line expands and, again, no reference is made to the parameters of the original search. I handled a case like this against one of the biggest companies in the world that had made just these mistakes and they ended up eating nearly $100 million in infringing branded merchandise.

2. Trademark litigation is not the lottery. The plaintiff here had first use in commerce and hence priority. But likely the jury did not believe it had either suffered any damages nor that it had proved secondary meaning beyond a very limited geographical scope. (That means the rest of the world can be the trademark territory of the junior user (here, Maytag / Jenn-Air), but that the senior user can continue to use the mark under what is called the intermediate junior user principle.) Winning a Lanham Act judgment is not a free money pass. You have to prove damages and, evidently, proving that this New Hampshire appliance store suffered from the promulgation of this high-end line of fancy-sounding kitchen doodads was not so easy.

3. Litigate in New Hampshire! This section deleted per the below.

UPDATE: An emailer (requesting that his privacy be maintained) sent along a link to a much more detailed version of this story. Massive difference from our understanding per the abbreviated one: Attorneys’ fees will be massive, not weensy; the $5400 was merely costs; an affidavit of costs will now go to the judge.

THE LATEREST:  Here’s where it all ended up:  In a First Circuit opinion. Attorneys’ fee–under New Hampshire law, mind you–were not as massive, as those things go, but at about a quarter of a million dollars that’s real money.  There are some other interesting issues, to0–more about them here.

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Author:Ron Coleman

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  1. Brooklyn Law School - May 12, 2010

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  2. Brooklyn Law School - May 12, 2010

    The Lonely Maytag Trademark | – RT Ron Coleman's LIKELIHOOD OF CONFUSION® | http://ow.ly/1JFi4