Permission Culture Infects Texas: Rodeos Or A Mexican Restaurant, Who Can Tell Them Apart?
from the que? dept
Just when you think you’ve heard it all, along comes a story so ridiculous it’s hard to write headlines for it that do it justice. We can still try, I guess. For pure hilarious complications, it’s hard to outdo the state of Texas denying Rodeo Austin, which puts on a fair and rodeo down south, a registration for its name because its name is supposedly too similar to El Rodeo Inc., a Mexican restaurant that doesn’t appear to exist.
This all came about because a well-established rodeo fair that had previously been known as The Star of Texas Fair and Rodeo has since become better known simply as Rodeo Austin. The rodeo has a federal trademark registration on that new name and likewise sought to register it as its official business name with the state of Texas. The Texas Secretary of State rejected the application.
In its decision, the Secretary of State’s office wrote that Rodeo Austin was too similar to El Rodeo Inc., a Mexican restaurant located – or at least once was — north of Houston in the city of Conroe. In its rejection, the Texas Secretary of State wrote that “the only significant difference between your proposed name and the entity name on file is the geographic designation at the end of the name,” and ruled the two names to be deceptively similar. Thus, Rodeo Austin would be required to get permission from El Rodeo to use its desired corporate name.
If this has the ring of trademark law to it, it unfortunately doesn’t borrow enough from trademark law. A brief persual of the rules for registering businesses in Texas, and specifically what constitutes business names that are too similar to be registered or are deceptive in nature, leaves out any language about actual consumer confusion or competitive markets. This is one of the most important provisions in trademark law, one which disallows for the ownership of common langauge for every use in every industry. And it also has the happy benefit of putting the public interest in the forefront. The rules in Texas don’t do either. Specifically concerning what constitutes deceptively similar business names which cannot be registered, the statute reads:
§79.37: Entity names are deceptively similar if on comparison of the names by the secretary of state there is an apparent difference, but the difference is such that the names are likely to be confused.
Be confused by who, exactly? Because it’s difficult to understand how El Rodeo Inc. and Austin Rodeo are going to result in anyone heading to the bull ring for a burrito, or wearing a matador suit to a taco stand. The Secretary of State in Texas makes a big deal about how the foreign nature of words doesn’t eliminate the potential for confusion or the similarity of the business names, which, fine, but if this all comes down to the word “rodeo”, in Texas of all places, how can the state allow that word to be locked up for the purposes of registration?
Oh, and how about the fact that El Rodeo probably doesn’t exist any longer?
Court documents place the restaurant at 2105 W. Davis St., Suite G in Conroe, at least as of 2004. But a Smoothie King operates at that address presently. Attempts to contact the owners of the restaurant for comment on this story at a phone number listed for El Rodeo in an online business directory were not successful, answered only by a voice prompt asking for a corporate access code. That same phone number is listed as the franchise phone number for Smoothie King’s Conroe Location on the Smoothie King website.
The only confusion in this entire story appears to be just what the hell El Rodeo is and whether or not it currently exists. Austin Rodeo has filed suit to get the state to recognize its name, which it has had a federal registration for since the late nineties. I would expect them to win on the merits. The more important point is that we ought not let the permission culture bred by intellectual property propagate this way.