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.
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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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