IANAL but I think this could definitely be challenged in court. I don’t have a cite, but I know that I’ve seen “caution” in all caps and followed by an exclamation mark on t-shirts and jackets since the early 80s.
I don’t think his comparison with Ralph Lauren holds up, because Lauren’s brand is very specifically “Polo Ralph Lauren” or “Polo by Ralph Lauren,” not simply “Polo.”
I hope someone does challenge this guy, because he’s a real jerk.
You mean you can’t trade mark common words like Apple and Windows?
I am quite sure you can trademark any word as your brand and others cannot use it to brand similar products.
But also the problem here is not branding but copyright. If I start a “sailor” brand line of Tshirts and put on the front “CAUTION, hard and fast sailor” then the brand is not a problem but the Caution guy can say I copied his idea. A jury might have to decide if I did or I didn’t.
You can trademark the word, but that, to my knowledge, does not disallow any prior use and would not stop people from simply putting “CAUTION!” on a shirt.
Microsoft tried to trademark Windows. The USPTO said “no way”. They also tried to sue Lindows for trademark infringement, but the courts said no to that too.
As a general rule, you cannot use trademark to prohibit a senior usage of the word. When the senior usage is general common usage, that means your trademark is virtually useless.
There’s also no way that copyright would apply to this situation; it is properly said that you cannot copyright a single word.
FWIW, I think it’s fine to trademark the word “caution” for underwear. But the problem is that words on clothing often are there for other purposes than to identify the source of the clothing. I don’t see how the guy can stop other people from selling any and all clothing that has the word “caution” on it.
Hmmm, I note that there’s a circle-R on the Windows logo in XP, both onscreen and on the product packaging, which would seem to indicate that this is indeed a registered trademark.
I dunno. I’m split on this issue. It seems to me, speaking as a non-lawyer, is that the key issue is whether Caution! is distinctive enough a name to warrant sufficient protection under trademark law. My first guess would be no. However, if Nike suddenly released a “Caution!” clothing line or something to that effect, wouldn’t Nike be able to trademark this idea and defend the slew of knock-offs that would spought out everywhere? I would guess so.
I’m thinking of this (from squeegee’s link:)
However, I doubt the Caution! line of clothing fits this description. At any rate, I honestly can’t side one way or another. If I came up with the “brilliant” idea of a Caution-themed line of tees, I’d certainly want it protected.
But this is where I wonder why “Windows” as a registered trademark for a computer operating system would not hold up in court. It seems evident to me that “Lindows” is stealing the Windows name.
squeegee, Microsoft has a registered trademark on the Windows logo and on the “xp” logo, but they were rebuffed when they tried to register the common word “Windows” as a trademark.
Intel tried to register the letter “i”, so it does get even more ridiculous.
The term “window” as a computing concept predates the existence of Microsoft as a company, to say nothing of the Microsoft Windows software product. Microsoft made a bad choice (from a legal standpoint) when it elected to call its product Windows, and now must live with the consequences of that choice. It would be like Eveready deciding to call its new line of high-efficiency batteries “Battery” and trying to use trademark to prevent other battery companies from using that name. Microsoft sometimes forgets that they are not in charge of the universe.
IANAL, but since T-shirts with “Caution:” or “Danger:” or “Warning:” followed by some phrase have been around forever, both with and without being part of a road-sign lookalike, it would seem to me that that would be a “senior usage” that the “Caution” folks would have a hard time forbidding, or even restricting only to T-shirt makers who had previously designed and retailed such T-shirts.
In the case of Windows, a couple of things are possible. One is that a logo involving an ordinary word can be distinctive, even when the word itself isn’t. (IMHO, the Windows logos are quite distinctive, and if you do a ripoff of that logo, you’re asking for any legal trouble you find yourself in. And I’m not exactly Bill Gates & Co.‘s biggest fan.) Another is that they may have been able to gain trademark protection for a very narrow use of the word “Windows”, specifically pertaining to computer operating systems. (This would be such a narrow protection that the aforementioned ‘Lindows’ apparently falls outside of Windows’ trademark protection.)
I suspect that the ‘Caution’ people may find themselves in a similar - but inferior - situation, should it come to court. They will likely be able to protect their logo - the word ‘Caution’ in a particular typeface, beneath the yellow triangle with the black exclamation point inside. But my bet would be that neither the triangle nor the word would be protected by itself, and any use of the word ‘Caution’ on someone else’s T-shirt, absent a triangular design with a single punctuation mark inside, would be ruled not to be a trademark infringement.
I’m no expert, but that’s where I’d lay down my bet.
Just in case it matters to some people, I’d like to say that the link to the “caution” site does have pictures of people in underwear (quick, hide the children!), so you might not want to open it at work, if that sort of thing is a big concern to you. (I know this might be a lame warning, but I was just slightly surprised. People in uptight offices might not want to go there, but then again, people in uptight offices probably know better than to click on links anyway).
Yet he threatens to sue everyone
I’m almost of a mind to make a store like that, let him sue me, and then kick his ass in court and reclaim attorney’s fees, but I don’t have the money to do it initially.
