Wednesday, October 28, 2015

Road trips show many unrelated retail businesses use similar names, at some risk

I pulled my road-trip mischief in the past two weeks, visiting restaurant and retail businesses within 150 miles of DC having similar names.

I see that I mentioned the “Country Store” issue on Oct 24, 2012 when I had visited the “Ole Country Store” in Culpeper, VA.  This seems to be the same business “The Ole Country Store and Bakery” on US 29 near Madison, VA (a bit north of Charlottesville) (local news writeup), viewed as still part of "Culpeper".  Indoors was a spacious modern country grocery and deli, with many gift items and interesting objects and photographs around on the walls. The sandwiches were served to made-to-order, with huge portions.

So, then, what about Cracker Barrel, The Old Country Store?  Notice “Old” v. “Ole”.  I looked on USPTO and found numerous marks prefixed by “CB”.  The chain has several hundred store-restaurants around the country, largely near Interstate highways and tending to be away from the largest cities.  The closest one to Washington DC is just west of VA 28 near Dulles Airport.  I visited it today, had a steak lunch.  (Why was the sour cream brought in a tear-off rather than a cup, and why wasn’t there steak sauce on the table?  Biscuits were delicious.)   It appears that the company owns all the stores rather than franchisees (from Wikipedia), but I don’t know if this is correct.  This would be a difficult brand for a franchise-owner to emulate (compared to a convenience store like a 7-11 or fast-food like McDonalds).

The store had many gift times and décor (similar to what I saw at “Ole” but even more of them, with more emphasis on non-food items).  There was a Halloween lamp with the face of an alien in Roswell or Area-51 style.  In the dining area, there was a lot of hunting and sporting gear, and an old phone from about 1920.

There would be an interesting question in the trademark or brandname world, whether exact spelling matters, or whether a word’s not being first in a claimed mark matters (as with the “…for Dummies” book series) – since that can complicate on-line searches.

Wikipedia documents the controversy that the Cracker Barrel chain had created in 1991, over firing some “gay” employees.  I covered this matter in Chapter 5 of my first “Do Ask, Do Tell” book (ABC 20-20 covered that once in 1991).

So then, I come to the other issue I’ve covered:  call it “Equal time for cats”.  There’s a strip mall in Arlington VA with a “Lost Dog” and “Stray Cat” restaurant (covered on July 28, 2012 in a very detailed posting here).  But the only “stray cat” trademark that I found online at USPTO (if I did it right) belonged to a company in Keyser, W Va., about 140 miles from Washington DC (just south of Cumberland, MD).

That business is now the “Stray Cat Wing Shack”, which seems to have been remodeled recently, and is a biker bar (a little resembling Danny’s on US-1 south of Baltimore) but also attracting true cyclists (there are bicycles hanging as part of the décor), and lots of unusual home-cooked dishes as well as usual bar stuff.

There seems to be a “Stray Cat” in Moorefield W Va (near the Rocks of Seneca country), as I documented on Aug. 15, 2013.  But the similarly named Mexican restaurant on US 50 slightly east of Romney W Va (in a strip mall with a big CVS store) did change its name some time back.

Most novelty-oriented coffee or gift shops and restaurants in smaller rural towns (away from major tourist destinations such as Orlando) are opened with the expectation of appealing to people who live in the area. Outside traveling business and sales people often find them and are generally not “confused” in the sense of the branding purpose of trademark law.  The real significance of the “common words” issue and local business is more about business culture.  Of course, “culture” is something that can matter to the (somewhat conservative) Federal Circuit which, as Electronic Frontier Foundation has often explained, usually winds up ruling on trademark and patent cases because of specialized legal “expertise”.  Some large corporations may want to monopolize some marks so they can sell franchise operations.  They might even argue, with some merit, that their economic strength is better in the long run for being able to provide jobs with benefits to workers.

 But this sort of position puts would-be small business owners into the position of borrowing money to push someone else’s brand (and commercial and cultural message) rather than express their own creativity.

Remember, when playing “on the road” (even if you’re Jack Kerouac) you may have to hold a one-run lead in the bottom of the ninth inning.  The New York Mets didn’t do that last night.

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