(I have excised this from the larger omnibus posting below and added to it.) A woman named Samantha Buck tried to parlay the coincidence of her name — “Sam Bucks” — into a free ride on the back of Starbucks, opening up a real and a virtual “Sambucks Coffee House,” promptly shut down by a Seattle court that ruled that the usage was likely to confuse consumers. Which it was. It’s an old rule of trademark law: There is no absolute privilege to do business under your own name if it would cause consumer confusion with an established trademark to do so. On the other hand, trademark owners can’t sit on their rights indefinitely — which requires them to move against the likes of Sam Bucks pretty fast to preserve them.
Now at least one editorial board doesn’t like the outcome, focusing erroneously on likelihood of confusion (“who would have thought this was really a Starbucks?”), which I’m usually sympathetic to. Here, they’re mistaken, and not just because of trademark dilution. It’s free riding on the strength of the Starbucks trademark, it was done in bad faith (even if not maliciously), and it most assuredly is trademark infringement. Similarly, the old argument that there is some inherent, God-given right to do business under your own name, notwithstanding the likelihood of confusion, has long been discredited. Again, the issue is not cut and dried, but depends on the actual questions of confusion and legality — not some dramatic yeoman “right” to “do business under your own name” — much less a nickname (like “Sam” Buck for Samantha Buck), and much less put it over the lintel on a shop that, for better or worse, larger or smaller, does compete with an established business.
Sorry, Sam. Try decaf.
Originally posted 2005-12-07 10:05:37. Republished by Blog Post Promoter
