Best of 2010: Drive-by infringement

Originally posted 2015-01-30 04:30:10. Republished by Blog Post Promoter

Steve Baird says initial interest confusion is “the real thing” and in the process  seeks to “add life” to Professor McCarthy’s famous “evil highway road sign” analogy:

Whatever the criticisms might be to the doctrine of Initial Interest Confusion, including those detailed by our friends Ron Coleman, Marty Schwimmer, and Eric Goldman, in the context of keyword advertising, the road-side restaurant sign shown [at left] definitely is “the real thing” for purposes of trademark initial interest confusion, in more ways than one:

It does depict the Coca-Cola brand, in all its glory, after all, so It’s The Real Thing, by definition.

And, unlike the very hypothetical scenario relied upon in the Wolf Appliance case, the above drive-in restaurant signage is real world and in current use, designed to attract attention, and has been for years, in fact, well after the business responsible for the sign dropped Coca-Cola for Pepsi. That’s right, “no Coke, Pepsi.” To twist Sean Penn’s words in I Am Sam, Wagner’s change was a “very bad choice,” at least in my humble opinion of taste.

Yeah, me too.  I used to think I liked Pepsi better.  Crazy!  It’s one more reason Steve and I are likethis.  More:

Last, it certainly is a good example of the Initial Interest Confusion doctrine at work.

Uh oh.  Like the old “Coke brings your ancestors back from the dead” story, I’m afraid this sincere run at resuscitating initial interest confusion is a grave error.  For now Steve would take us from the brand-laden anecdote and the cultural mix-and-match moment to — as if  he were a judge in a Lanham Act case! (some day, I’m sure!) — slapping some poor sap with legal liability over what’s probably just laziness, business logic or a little bit of both.  Here’s his real-life tale of interest, initially and heartbreakingly confused:

Minneapolis drivers on Highway 81 pull off the road for a great cheeseburger and a refreshing Coca-Cola, or in my case, Diet Coke. Only to find that there is no Diet Coke, or any Coca-Cola products for that matter, only Pepsi products. Drivers likely aren’t confused at the point of purchase, however, since the menu and interior soda fountain signage refer to Pepsi not Coke. Nevertheless, the exterior sign no doubt has steered more than a few thirsty types off the road over the years to end up purchasing Pepsi products, not Coca-Cola products.

Not me, however, I’m not even initially confused any longer, just annoyed with the change, and deciding with each visit, well in advance, to enjoy a chocolate malt instead of a soft drink, since I can’t have the real thing any longer at Wagner’s Drive-In II.

I’m not the first to say that, unlike a refreshing Coca-Cola® brand soft drink beverage product, this “detour of doom” argument leaves me flat.

First, there are more factual presumptions in this argument than there are bubbles in a frosty two-liter.  The biggest, most carbonated one is that the sign is being left up on purpose, presumably  because Coke reels the custom in parched carbohydrate-seekers off the old Interstate in a way Pepsi can only dream of.

I find that hard to believe — it’s not as if Wagner here switched to some weird off-brand slop.  It’s Pepsi, dude. In fact, the issues that face restaurant owners with respect to making the switch can be quite complex.  But for a run of the mill roadside dive, it doesn’t seem likely that the Pepsi boys were prepared to not only pay for menu and interior signage changes, but pick up the freight to have the old Coke sign removed and replaced with the standard of the victor.  How many cases of Pepsi exactly are the Wagners going to move here, after all?

It seems likely that everyone just forgot about it — including the Coke folks, who were either planning, or at least hoping for, a reconquista against the uppity horde or, just as likely, just kind of forgot about it and engaged passively in a little ghost branding — and so it most likely went.

And then, really, how do we know how many thirsty travelers pulled over for a cold, stimulating Coke and a smile only to find themselves plunged into the Pepsi generation?  “[T]he exterior sign no doubt has steered more than a few thirsty types off the road over the years to end up purchasing Pepsi products, not Coca-Cola products” is, again, exactly what I would expect to find in a typical Lanham Act opinion by a typical District Court judge these days [That’s a typical one!  Not you, Your Honor!–RDC], but it ain’t what I’d call proof of harm — irreparable or otherwise.

In fact, my insistence for rigor in proof of harm is almost besides the point, because guess what?  For all the awfulness of the thing, by all indications this patent lie repeated for years on the honest wayfarers of the Viking State obviously didn’t bother the Coca-Cola people a whit!  In true ghost-branding fashion, they haven’t done a thing about it for all that time, and shy they’re not.  Either they don’t care, or they’re thinking all things considered most people actually don’t stop at Wagner’s place, so they mainly still have a decent Coke branding beacon hitting the highway day and night… or… or … There’s no legal harm here!  As in the de minimis non curat lex kind of thing!

Having drunk all that in, there are also just plain trademarky, legal-doctrine-ish reasons for me to disagree with Steve, something I hate to do because he’s a great guy and he knows a lot about trademark law that I should know but don’t. But that’s never stopped me from courteously saying what I think, right?  And as it happens I just said that here.

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