Stop the Madness

First, Tom had to lose his "S"
Now, Jens of the CWG is being hounded to lose his 'wine garage' moniker.  I have no insight as to the legal merits surrounding Jens' lovely cease & desist letter.  However, to my untrained eye, it seems re-damn-diculous.  Surely there are a few wine lovin legal smarty pants who frequent the wineblogosphere.  Can any of you esquires shed some light on the Cinnci Wine Garage dilemma?

Ya'll better not come at me with any funny business regarding Basic Juice (est. 2003).  I got one vicious attack poodle :-/

SAVE THE CINCINNATI WINE GARAGE!

Comments

[Mithrandir]

The problem with trademarks is that they can become invalid if the owner does not make a conscious effort to defend them. Usually, this defense takes the form of cease-and-desists and law suits, but can include ad campaigns and such.

Copyright lasts forever (effectively), patents last for 20 years or less, but trademarks only last for as long as they remain unique and identifying.

One retail shop going after another 2000 miles away seems odd to me though, as trademarks are usually only valid in the spaces where they are used. Cincinnati and California are very different markets. I suspect that Jens has a non-zero chance of success if he doubles down, gets his own lawyer and fights.

I'm not a lawyer, just a guy with an interest in IP policy. I'm probably wrong.

[Tyler Simons]

Professor Bainbridge hasn't mentioned any of these episodes, to my knowledge, at least. He's a law prof. and might be a good person to ask.

[Tyler Simons]

Professor Bainbridge (professorbainbridgeonwine.com) hasn't mentioned any of these episodes, to my knowledge, at least. He's a law prof. and might be a good person to ask.

(Why no html comments?)

[Steve-o]

I am a lawyer, but IP is not my area. Still, I think I could say this: leaving the question of the internet out of the picture -- if what Jens says is correct, and his business is essentially a neighborhood shop that has no national or interstate presence, and the California company has no real presence in Cincinatti, then this C&D letter is an empty threat, and Jens has nothing to worry about.

However, the internet has confused everything. A company's (or person's) presence and promotion on the internet necessarily invites some international presence by definition, and the courts have not yet uniformly figured out how to deal with this. There have been cases that try to focus on who really seems to be solicited by a website. I vaguely recall seeing a case where the presence of a neighborhood map (i.e. within a few city blocks) on the website was the only indication of directions to the shop was decisive in the court determining that the website was solely locally focused - and the business owner was allowed to continue to use the trade name.

But again, this is not my area - and it's a quickly evolving field. I wouldn't suggest reliance on my post. Not to mention the fact that I just woke up and am still rather incoherent...

I also suspect Mithrandir is right - this is probably really about the Google search results.

[Steve-o]

Oops! That wasn't Mithrandir who pointed out the Google thing - it was Mike at the CWG site. My mistake!

[cincinnatiwinegarage]

Thank you all for the help. Doesn't look good unless I want to spend $20K to defend. I am working on new names. How about the "Calistoga Wine and Pet Supply Co."? Maybe I will have a name contest.

jens at Cincinnati Wine [ ] fill in the blank

[Lenn]

All these jealous punks are just feeling the POWER OF WINE BLOGS!

Okay...seriously. I don't see how this letter has any teeth to it at all. You can't send such a letter just because a name is similar and one is kicking the other's tail in a google search.

There is a restaurant in Clearwater, FL named "Lenny's" that I'm sure sells wine...should I send them a letter and make them change it becuase it's too similar to my name and the cheap plonk they sell lessens the impact of my site?

Sounds stupid, doesn't it?

[Steve-o]

Lenn - but you don't sell wine, do you?

These are both for-profit wine merchants with an online presence, unless I misunderstood the situation.

[beau]

However, one very salient point is this:
Jens does not refer to the CWG as the 'wine garage' - it's only ever referenced as "The Cincinnati Wine Garage." No confusion with any other wine, wine garage, wine service garage, etc.

It's not his fault that google grabs just the wine blog portion of the title.

Using the same flawed logic, we could all be taken on by wine publications having the word "wine" in their title.

What's stopping Wine Spectator for going after Winewaves (or any number of other wine reviewing blogs)? Someone googles wine + reviews and sees a lot of results other than wine spectator.

I really don't see any issue/confusion with CWG and any other wine garage.

Perhaps Jens should lose the spaces and call it: CincinnatiWineGarage
!

[Steve-o]

No, absolutely, Beau. I don't personally think there are a lot of teeth in this C&D letter, and if I were in Jens's position, I would probably stick to my guns. Actually, I'd probably respond with a letter pointing out the very things both you and I mentioned, and see what they do. Perhaps they go away and that's the end of it - only thing lost is 20 minutes or so to write a letter.

I think this is probably a battle Jens could win - it comes down to whether it's one that he deems to be worth fighting (time/money).

BUT all of that is said with an incomplete picture of the whole situation - we don't know all what's at play here. As such, neither I or any of us outside commentators can really recommend a course of action.

[beau]

S-o
I agree. We don't know all the details. However, I did want to give Jens some ideas/options to think about. I also suppose I'm a bit wary of our space being bullied around, and thus responded with 'fight' rather than 'flight.'

[jens at cincinnati wine warehouse]

As you can tell I have decided to change names and not fight (spend $20K) but am still working out the details. I now have to get all those links switched over to the new address without losing my web presence. I still thinks it's ludricrous concerning the claim I am "confusing" customers. What, you can't figure out if you are buying micro-wines from a California retailer versus posted wines in an Ohio retail store. If I had set up shop across the street from him, I would understand, but 2,000 miles away. He needs to work on his Google optimizations, or hell start a blog and spend some time developing his brand, like I did!

jens at cincinnati wine warehouse