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Fighting Fakes

Courts Are Providing Increased Protection For Those Who Create Products And Packaging.

Since 1905, family-owned Frank Brunckhorst Co. has been selling its meats, cheeses, hot dogs and condiments under the name Boar's Head. Proudly identifying its products with a logo of a boar's head in a circle or an oval, the company has developed a network of distributors and expanded over the past decade from its original New York market to retail stores nationwide. So imagine the owners' surprise in April 1994 when a major beer company rolled out a new beer brand bearing a similar logo and the name "Boar's Head Red."

There had been no confusion 10 years earlier when the same brewer, G. Heileman Brewing Co. Inc., introduced a Blue Boar line under its Weinhard's label. The new red beer, though, had customers asking Brunckhorst distributors when they'd gone into the beer business.

Brunckhorst sued the beer manufacturer-and won. In December 1994, a New York U.S. District Court ordered G. Heileman to stop using the Boar's Head Red name and logo.

The law has long protected copyrights, patents and trademarks from infringement, whether through inadvertently adopting a registered name or deliberately trying to catch a ride on the owner's hard-earned reputation. In recent years, courts have become even more diligent about protecting the rights of those who establish, use and defend a patent or trademark. They have also expanded the concept of "trade dress," which concerns a product's overall look. In many cases, these concepts overlap as the court determines whether one company has infringed on the "intellectual property" rights of another.

Last August, for instance, a federal jury in New York ordered chain retailer Express Inc. to pay $1.2 million in damages to Banff Ltd., a small Fairfield, New Jersey, clothing company, for "knocking off" one of Banff's most popular sweaters.

In 1991, Banff began marketing a version of the traditional cableknit fisherman's sweater, with a cowl neck and flowers crocheted on the lacy yoke. It was featured in Glamour magazine and sold at Bloomingdale's. The next season, the Express retail chain rolled out approximately 40,000 nearly identical sweaters and sold almost all of them for about half Banff's price.

"It was pretty blatant," says Parker Bagley, a New York City attorney with Brumbaugh, Graves, Donohoe & Raymond, who represented Banff. "The jury could tell [Express] had copied it virtually stitch for stitch." The award essentially required Express to turn over all profits from sales of the sweaters. Bagley notes it was the first time a clothing design has been protected as an "inherently distinctive trade dress."

Steven C. Bahls is dean of Capital University Law School in Columbus, Ohio, where he teaches courses in entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

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This article was originally published in the February 1996 print edition of Entrepreneur with the headline: Fighting Fakes.

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