In Do you have a right to exclusive use of your name? Cecil writes
Does this mean I can name my hypothetical kid Starbucks Microsoft Burger King, as far as copyrights/trademarks go?
Given the number of parents who have saddled their kids with the name “Espn” I have to say the answer is yes.
You do not violate a trademark by merely using it. It is a violation if you are using it in a commercial sense or competing with them or causing confusion with their business or implying that you are an authorized user. Naming a child doesn’t fall into any of those categories.
Yes, but I believe existing case law would then prohibit him from opening a coffeeshop, a software company, or a fast-food joint under his own name.
That’s right. My Business Law teacher in 1967 told me, “If your name is Howard Johnson, you can open a Howard Johnson paint store. If you want to open a hotel or a restaurant, though, you’ll have to call it something else.”
This is assuming a child in the US. In many European countries you don’t have unlimited rights to choose a name for a child, and that name might well be rejected.
Could he open the Burger King software company? For that matter, could I?
Yes, that’s why I added “as far as copyrights/trademarks go”.
I’m not an attorney of any kind, let alone one specializing in trademarks and copyrights, but I think the answer is maybe, but probably not.
My understanding is this: In theory, trademarks are only protected within certain industries or for specific uses. So a Burger King Software company would not infringe on Burger King restaurants. However, unless you had a pretty good reason to use that name (such as it being your name, for example) I think you might have trouble.
I ran into a similar situation several years ago. My partner and I were starting another software company, and wanted to name it Performance Inc. We applied to the state to incorporate under that name and were turned down because it was similar, but not identical, to another business in the state who sold high performance auto parts.
The people at the state told us it was their policy to be careful of those kinds of conflicts, and one of the reasons was that it frequently caused trademark problems later. Now obviously that was second hand information about trademarks, and maybe they were wrong. But it does show that even if the trademark conflict doesn’t get you, something else may keep you from using a name.
About three years ago, we were applying for a trademark for a new software product, and in discussions with the trademark attorney, we were told that one of the names we were considering would probably not fly because it was similar to a nationally known business. Even though that business had nothing to do with either software or the vertical market we were selling to, he told us that it would be seen as an obvious attempt to trade on the popularity of the other business’s name. Which of course it was, we thought it would get our product noticed a bit more using a widely recognized but unrelated name. Since we had no special reason to use that name (it wasn’t one of our names, or had nothing to do with the product, etc.) it almost certainly wouldn’t be accepted.
Yep. The original owner of the first McDonalds, who sold out to Roy Kroc, later came out of retirement and tried to open a new fast food restaurant under his own name, McDonalds. McDonalds Corp. sued him, and won.
An example of this was Apple.
When Apple Computer Company was formed, there was an existing company named Apple, founded by the Beatles to sell their music. (And the logos looked similar, too.) But the fields were pretty separate, computers and music. So Steve Jobs reached an agreement with Apple music that allowed him to use the Apple name for selling computers, and he agreed to stay out of the music area, and Apple music agreed not to sell computers.
Years later, when Apple Computer started Itunes and such, the Apple music company objected that they seemed to be moving into the area of music. They were not able to agree about this, and eventually Apple music company sued Apple computers. Apple music lost the lawsuit, though I don’t understand quite why. But it cost both companies a lot of money and time.
[nitpick]That’s Ray Kroc
Apple Corps lost the suit because the judge felt that the iTunes Store didn’t violate the existing agreement between Apple Corps and Apple Computer. Specifically,
Wow! Apple Computer had some pretty smart lawyers to have included that clause back then! And, on the other hand, Apple Corps had some pretty stupid lawyers to have tried to pretend the clause wasn’t there. What did they do? Research the case in old newspaper accounts, instead of looking up the text of the actual agreement?
Ray, as Nametag pointed out. I read the “unauthorized biography of Ray Kroc” (Bic Mac I think it was) that mentioned this. Kroc had tried his hand at several things after World War II and was selling restaurant equipment. He got an order from a place in San Bernardino (I think) for those Hamilton Beach milk shake machines that can do six at a time – eight of them. Curious* why someone needed to make 48 shakes at the same time, he delivered them himself rather than have them shipped.
There he found two brothers from New England named McDonald running this hamburger stand with most all of the McD’s assembly line method for fast food already extant. Intrigued, he partnered up with them and started expanding. A few years later he bought them out for a handsome sum, but nothing like a bazillion dollars. They got to keep their original stand, but had to rename it Mac’s Place. Then Kroc opened a McD’s across the street and they went bust.
*This is where Kroc showed his genius. You or I would have said, “Great commission offa that sale” and not bothered to drive out to Berdoo.
That’s Big Mac. Nothing to do with lighters or pens.
Bic Macs? Just what we need. Another lawsuit.