Humor may belie the seriousness of trademark infringement

We’re sure you are familiar with the quote, “Imitation is the sincerest form of flattery.” Depending on the circumstances it can be that. However, in the commercial sphere, imitation can be risky business. Intellectual property claims make this so.

If you have gone to the trouble of patenting your idea or trademarking a symbol, name, word or device, you have created a measure of value that warrants protection. That can be a challenge to undertake if your attention is focused, as it should be, on your business’s success. Accomplishing the mission requires legal skill and due diligence, which reinforces the importance of working with experienced IP counsel.

One form of IP imitation that has been around for some time is parody usage. Perhaps one of the most notable cases in recent memory is reflected in the struggle between Apple and Samsung over their competing smartphones. The bitter battles waged for years over alleged patent, licensing and design infringements.

Beer brewing is another industry that has seen an uptick in trademark battles. For example, there was the Bud Light cease and desist letter sent by costumed town crier late last year to a microbrewer in Minneapolis. The demand, offered in gracious lilt, informed the makers of “Dilly Dilly” IPA to stop using the Dilly Dilly phrase, trademarked by the maker of Bud, or else.

And this summer, a San Francisco brewery and distillery received a letter from In-N-Out Burger. The pun-filled missive sought to pull the plug on marketing a canned brew called In-N-Stout, the label of which featured two In-N-Out logos. As the letter observed, “Based on your use of the trademarks, we felt obligated to hop to action in order to prevent further issues from brewing.”

The tongue-in-cheek actions achieved the desired outcomes, but these stories beg the question. Did the alleged infringers know they were skating on thin imitation ice that could lead to court, the destruction of their work, monetary fines and damages that could include paying all court and attorney’s fees? Or did they know all that and go ahead anyway, welcoming the media attention?

We may never find out. We do know that to avoid being caught in your underwear like Tom Cruise in Risky Business, it’s best to be aware of possible consequences.

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