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.

Thursday, October 08, 2015

Judge in East Texas turns the tables on a patent troll

East Texas (the real South) has been the favored venue for patent trolls, until now.

Ars Technica is reporting (story by Joe Mullin) that a federal judge in “plaintiff-friendly” East Texas has turned tables and thrown out 168 suits filed by eDekka, story here. The “patent” is described on Google here  and is nothing more than the “abstract idea of storing and labeling information”.  The defendants may be able to get attorneys fees back. 

Saturday, October 03, 2015

Updating my intentions for my own domain names ("do ask do tell")

Recently, I did a routine “WHOIS” on my domain on Network Solutions, and saw a somewhat cheesy banner offering to negotiate with any perspective anonymous purchaser.  Maybe this is common with many individually (not corporate or organizational) domains.

I have the domain name paid for and reserved until Dec. 2, 2021 (when I will be 78).  The domain name is the same as the “series title” for my three “Do Ask, Do Tell” books (1997, pod 2000, then 2002, and 2014).  I actually set up the domain on Dec. 2, 1999.  Previously, the domain name that supported my first book was “” (which remained active until July 31, 2005).  That had been a mnemonic for “High Productivity Publishing”.  After publication, as I learned more about domain names and potential possible trademark issues, I realized I should use a domain name that matched my book.

At the time of my first book and through much of the early 2000’s, my “doaskdotell” domain name was probably associated by many people with the issue of gays in the military.  (The “don’t” becomes “do”).  Since the repeal in 2011,  that connection is probably less clear today, except as a matter of “US History”.  It would sound like a natural phrase to use in connection with HIV prevention (including for heterosexuals), by encouraging partners to disclose their health status. 
I do need to reiterate that I intend to use the domain (and similar derivatives like my "” site on Wordpress) for the foreseeable future as I complete my own work plan (see the label “Strategic Planning” on my main “BillBoushka” blog). 

Public corporations and other entities using “other people’s money” (investors) have to defend their trademarks vigorously, as consumers are not expected to have detailed knowledge of their circumstances but depend on brand names.  Common phrases with political or social connotations are inherently dubious as trademarks for items or services expected to turn profits with investor money, because phrases are often interpreted differently even within relatively specific segments of society.
While “do ask do tell” may sound inherently linked to “gay equality” now, different subgroups of people interpret that concept different.  For example some see it in terms of discrimination against people in identifiable suspect groups; others see it in terms of individual rights (v. supposed collective needs of a larger society).  It’s not possible for a phrase like this to invoke one interpretation in a potential consumer’s mind over another interpretation reliably.

Even so, established charities and non-profits do use trademarks, and need the idea to help potential donors know that money is going to the right place (writeup) .

One important matter to mention is the TLD”.  In the earliest days of the web, “.com” was supposed to be for commerce, but it wound up very quickly (by about 1998) being used for everything.  “.org” was supposed to be for organizational non-profits only, but some individuals started using it.  “.edu” was more restricted (to educational institutions) as were “.mil” and “.gov” and even “.us”.  Now there are dozens of tld’s, many of them based on small countries.  Large entities can apply to ICANN to establish new ones.  But an important concept, perhaps a bit in tension with trademark, is that “.com” and “.org”  (as well as ".edu", ".gov", ".tv", etc) can be used with the same root for completely different and unconnected entities.  This was the original intention, although it doesn’t seem to be a well understood today as it may have been in the late 1990s (when another problem was that some old-school companies were slow to get their own domains at all).
By the way, as a historical aside, I let go of “” in August 2005, and still got a call from someone wanting to “buy” it on paypal even though it was no longer legally mine.  It was an online gambling site for a few years but is for sale today.