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September 2019
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AB InBev Fails To Get 'Patagonia' Trademark Suit Dismissed

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Earlier this year, we discussed a trademark suit brought against Anheuser-Busch InBev by Patagonia, the famed outer-wear maker known best for its association with skiing and outdoor sports apparel. While we usually make a big deal about market separation when it comes to trademark enforcement, this case was notable for two reasons. First, the trade dress choices made by AB InBev for its "Patagonia" beer were quite similar to Patagonia's trademarks, not to mention that AB hosted popup locations at skiing and biking locations to sell its beer, exactly where Patagonia is so well known. Second, AB is a notorious trademark hound, gobbling up all kinds of marks and then wielding them like a cudgel against small entities. If anyone were going to be sensitive to the trademark rights of others, you would think it would be a company like AB. But not so much.Rather than admitting its error and siding for strong trademark rights, however, AB InBev decided to try to get the lawsuit tossed by claiming that "Patagonia" is not actually well known and therefore should not be afforded federal trademark rights. The court took 20 pages to decide that AB InBev was wrong and that the case would move forward.

U.S. District Judge Virginia A. Phillips disagreed, writing in a 20-page order Tuesday that Patagonia has – at this stage in the proceedings – sufficiently shown its mark is both “famous and distinctive” and that promotion of its brand has factored in its $10 billion in sales since 1985.“Assuming these allegations are true and construing the facts in the light most favorable to plaintiffs, plaintiffs have sufficiently alleged that its Patagonia mark is “famous” for purposes of its federal trademark dilution,” Philips wrote.
The sales numbers are really all that was required to refute AB's ridiculous claim. Anecdotally, I can say that I haven't been to a ski mountain in a decade or so, and even I am fully aware of Patagonia's brand. The company has been around forever and is a common site out west.The court also refused to dismiss on AB's claims that it in fact had not abandoned its Patagonia trademark by not using it for half a decade and that there would be no confusion by the public that its "Patagonia"-branded beer would be confused with the clothing company.
Phillips also denied Anheuser-Busch’s request to dismiss on grounds that Patagonia failed to show that customers would associate their beer with its clothing and its brand of environmentalism. The brewer likewise failed in its argument that it had not abandoned the Cerveza Patagonia mark from Warsteiner despite not using the mark for five years.Rob Tadlock, a member of Patagonia’s legal team, applauded Phillips’ ruling as “a well-reasoned opinion rejecting Anheuser-Busch’s effort to avoid defending Patagonia’s claims, including that Anheuser-Busch committed fraud on the Trademark Office and has deliberately tried to confuse customers into thinking that Patagonia Cerveza is produced by Patagonia, rather than Anheuser-Busch.”
Again, where is AB's strong stance on trademark in this case in which it is the one that appears to have run afoul of another's trademark rights? To the shock of this writer, it appears the company has something of a "trademark for me, but not for thee" philosophy.

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History Repeats Itself: Twitter Launches Illegal SF Street Stencil Campaign Just As IBM DId Decades Ago

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Everything old is new again, and the population of tech workers seems to turn over especially fast in the San Francisco Bay Area. I guess I now qualify as an old timer, in that I remember quite clearly when IBM ran a big ad campaign in San Francisco and Chicago to profess its newfound love for Linux. The ad campaign involved stenciling three symbols side-by-side: a peace symbol, a heart, and Tux, the Linux penguin:

The message? Peace, Love, Linux. It didn't make much sense then either. Either way, neither city was happy with the streets being all stenciled up. San Francisco fined IBM $100,000 for graffiti, though perhaps the company figured that was cheaper than buying a bunch of billboards in the same area, and it certainly got more press attention. The story was even more fucked up in Chicago, however. There, one of the random dudes IBM's ad company had hired to paint this ad message all over sidewalks was arrested and sentenced to community service for vandalism. Not great.So, apparently no one working at Twitter was around for that experience nearly two decades ago, because the company has just done the same thing. Just a few days ago I was at the Powell Street BART station and saw it was completely coated in giant posters of tweets, but apparently they're stenciled on sidewalks nearby as well (I seemed to have missed those)
San Francisco wasted little time in pointing out to Twitter that, uh, this is not allowed:
Apt or not, the stencils, created using a spray-paint-like chalk, are illegal, according to Rachel Gordon, spokeswoman for the Department of Public Works.That's not the use of the sidewalks, she said. We can go and document them. If they don't remove them immediately, we'll send a crew to remove them and charge them.Gordon added, Our sidewalks are not to be used for commercial billboards. Twitter has the resources to use appropriate venues to advertise their company.
Twitter has apparently already apologized and said it's trying to figure out why it fucked up:
Twitter responded with the following apology: "We looked into what happened and identified breakdowns in the process for meeting the cities' requirements for our chalk stencils. We're sorry this happened."
I'm just amazed that no one involved in the process remembered the whole IBM thing, but I guess it's just a reminder of how old stories like that fade away.

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