Sunday, September 19, 2010

Distorted Argument

Think Progress provides another example of how the “left,” in their haste to attack corporations, distorts reality. The International House of Pancakes has sued a prayer group who is using the “IHOP” acronym, calling itself the “International House of Prayer,” and Think Progress is portraying that as an incidence of corporate abuse of process.

Amusingly, because trademark infringement cases often come down to whether the defendant’s use of the plaintiff’s mark is “likely to cause confusion” between the two parties, this case could turn upon whether anyone is likely to confuse a church with a pancake joint.

What Think Progress, in its trenchant analysis, fails to observe is that trademarks have to be protected at all times, or they cannot be protected at all. If IHOP allows one group of any description to use its trademark then the trademark becomes “public domain” and is no longer considered to be unique under copyright/trademark law. If IHOP allowed the prayer group to use the acronym without objection, then it would no longer be a unique trademark and the next organization who wanted to use it could claim the prayer group’s use of it as a defense and IHOP would be unable to claim exclusivity.

The other thing they fail to observe is that their interpretation of the meaning of the “likely to cause confusion” clause is wildly off the mark. The actual meaning of that clause is not whether or not the use of the trademark is likely to lead people they are the same organization, but whether it might lead people to believe that there is a relationship between the two organizations. That might very well be considered a valid concern on the part of the restaurant chain.

A similar case was an auto parts store that named itself “Auto Shack” and was sued by Radio Shack. The latter was not concerned that people would go to Auto Shack to buy radios, their concern was that the name could lead people to believe that the two were affiliated. They won and the auto parts chain was required to change its name to “Auto Zone.” It would not surprise me that IHOP, the restaurant, has a similar concern in their suit.

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