Trademark

by Timothy Geigner


Filed Under:
band, beer, lmfao, music, trademark



LMFAO, The Band, Sends Cease And Desist Over LMFAO, The Beer

from the smh dept

It's been quite clear over the past two years or so that the alcohol industry, and specifically the craft beer industry, has a massive trademark problem. The simultaneous and wholly related explosions of both the sheer number of craft brewers in existence and the unprecedented interest in craft brews has resulted in more threatened legal action than anyone could have anticipated. At the heart of the issue is the cultural practice of giving specific brews funky, funny, derivative and pop-culture-based names. Because of the number of brews being developed, these names often are met with concern by a secondary party who holds a trademark on something similar. Most often, these disputes come from other breweries.

But not always. Sometimes, indeed, they come from the strangest of places. Take the case of Pigeon Hill Brewing Co.'s latest offering, the LMFAO Stout. You already know where this is headed, don't you?

The latest case in a string of trademark disputes involving West Michigan craft beverage producers didn't come from a company in the industry, but rather from a pop music group.
The band, which bills itself as an “entertainment phenomenon,” alleges that Muskegon-based Pigeon Hill Brewing Co.’s LMFAO Stout infringes on its trademarked name, according to a cease-and-desist letter sent on Aug. 11. The letter caught executives at Pigeon Hill off guard as the brewery had researched potential trademark violations in the craft beverage space prior to labeling its beer, said Michael Brower, a co-founder at the brewery.
Yes, LMFAO, the band, sent a cease and desist to the brewery over LMFAO, the beer, claiming that consumers might somehow think that the band was now in the brewing business. You see, in today's permission culture, that the brewery actually took the step of searching to see if anyone had a trademark on LMFAO for alcoholic drinks doesn't really matter. Because LMFAO, the band, saw an opportunity for relevancy and jumped on it.
“We have a very famous mark,” Thilo Agthe, the attorney representing LMFAO, told MiBiz. “We have to be very careful in policing how that trademark is used and by whom. It’s possible that customers that purchase (LMFAO Stout) might associate that with the band.”

Agthe declined to comment on whether the group had specific evidence of customer confusion related to Pigeon Hill’s beer, citing the attorney-client privilege.
I can't honestly say that I've ever heard of attorney-client privilege being used as a shield for providing evidence of a trademark dispute in this way. Probably because it makes about as much sense as me putting my dog in front of a computer and shouting at her to make me a pizza. The whole point of a trademark dispute of this kind rests on customer confusion, real or possible. The proper answer to the question of "Why the hell are you bothering with this?" isn't "Haha I can't tell you because I'm a lawyer."

And we've seen more than enough of this "We must protect our trademark" excuse used in these types of disputes. A mark owner is bound to police the use of their mark within the industry and within the bounds of trademark law. It is most certainly not bound to police every instance of the words or phrases being used by anyone in any commerce forever and ever amen. Especially when it's been demonstrated clearly that the use by the brewery, in this case, has literally nothing to do with the band.
Pigeon Hill settled on the name for its LMFAO Stout, which stands for “Let Me Fetch An Oatmeal Stout,” after soliciting input from social media to crowdsource the beer’s name, Brower said.
Yeah, that isn't what LMFAO stands for and they know it. That said, what LMFAO does stand for has been around long before the pop band decided to utilize it for their name. I would expect any action brought by the band to be dismissed with haste.


Reader Comments

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  • icon
    Sheogorath (profile), 14 Aug 2015 @ 7:49pm

    All together now: I'm stupid and I know it

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2015 @ 9:01pm

    Dumb Dumb Dumb

    “We have a very famous mark,” That they stole from the millions of people on the internet that had been using it for years.

    How dumb could their attorney be?

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 15 Aug 2015 @ 8:54am

      Re: Dumb Dumb Dumb

      The attorney is smart enough to know that he's being paid to protect a trademark at all costs, even if there's no real danger of confusion . The band's management was smart enough to trademark it. The dumb here is the system itself, that allows someone to not only trademark a commonly used word (or acronym in this case) that they didn't invent, but also bully people using that for independent reasons with no real danger to the trademarked business. The attorney cashes his checks based on this stupidity, he's not necessarily dumb himself.

      reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 14 Aug 2015 @ 9:58pm

    How about GFY?

    reply to this | link to this | view in chronology ]

  • identicon
    avideogameplayer, 14 Aug 2015 @ 10:10pm

    How about STFU and GFTO?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2015 @ 10:36pm

    Who the dead in hades is the band LMFAO?

    Never heard of them and don't think I ever want to. Just like I don't want to know anything about that um crazy sheila Suit Maker Fast.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Aug 2015 @ 11:12pm

    The judge should LMFAO them right out of court.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2015 @ 3:53am

    this type of thing has gotten worse and will continue to get worse until there is something positive done. that means someone in Congress tabling a law or whatever the procedure is, to make it a punishable offense when issuing these 'nuisance' and ridiculous 'cease and desist' orders, where the punishment is the same as the various industries insisted against ordinary members of the public. the reason they happen is because Congress didn't want to make it hard for their buddies in the various industries to be held accountable when they issued the stop and shut down orders. now we've got such a monumental fuck up, it's gonna take forever to sort out, which was another reason why the industries wanted it how it is. it has to change. before long there is going to be the most ridiculous order put out that if not followed will lead to a humongous court case where a hell of a lot of companies lose out, not just ordinary folks! change things before it gets to that stage instead of sitting back, thumbs up asses, brains in neytral, waiting for thenext check to be delivered!!

    reply to this | link to this | view in chronology ]

  • icon
    scotts13 (profile), 15 Aug 2015 @ 3:59am

    Making a law isn't the solution

    Claims like this are already unsupported by law. Problem is, the cost of proving it, for the umpteenth time, are so high many defendants back down. What would be ideal is a rapid way for judges to look at one of these, say "bullsh*t" and throw it back, with a finding for costs.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Aug 2015 @ 11:46pm

      Re: Making a law isn't the solution

      What would be ideal is "loser pays". Then when LMFAO loses, they pay ALL costs for the winning side, including lawyer fees.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2015 @ 4:19am

    It should be like patents ,
    if theres prior art you cant trademark a word in common
    use that you did not invent .
    You can call a pop/rock group what you want ,
    but you cant sue someone else a shop or company who uses that word .
    All court cases over ordinary words should be rejected by the judge before it comes to a court case .
    There was a pop group called boston they did not sue anyone else for using that word .
    You should not be allowed to trademark a common word/ abbreviation
    or a word you did not invent .

    reply to this | link to this | view in chronology ]

    • identicon
      monurta@gmail.com, 15 Aug 2015 @ 5:47am

      Re:

      Their trademark doesn't seem to cover beer, so it's irrelevant.
      You can trademark things, but you specify what the trademark relates to.

      The closest they get is musical performances at clubs, bars and restaurants, which might serve alcohol, but from an article on their trademark application, it covers music and entertainment, not beer, so this should already be covered by the nature of trademark applications.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2015 @ 6:30am

    I hope the Mexicans are building a wall at the border to keep the Americans out. Anybody heard any good stupid American jokes lately? How many congressmen does it take to screw in a light bulb? Sorry, that bill never made it out of committee.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Aug 2015 @ 10:56am

      Re:

      What do you call 1,000 Politicians at the bottom of the ocean? A good start... oh wait, that's a good one. Carry on.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2015 @ 6:47am

    Re: 'We have a very famous mark'

    Maybe the lawsuit is just a conspiracy between the two of them to generate hype, to which TechDirt is willfully obliging. Hopefully the judge sniffs that out, and contempt of courts both of them. After that, yeah, it probably would be a famous mark.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 15 Aug 2015 @ 7:12am

    Moar not more

    Probably because it makes about as much sense as me putting my dog in front of a computer and shouting at her to make me a pizza.

    How disappointing. It appears you either need a better trained dog or a better programmed computer. I mean really, who wouldn't expect their dog to fetch a pizza from a digital device? Didn't you teach your dog to type, or does your favorite pizza joint have a voice controlled website that doesn't understand bark code?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2015 @ 8:31am

    Again we can send a message to the band, don't buy or listen to their music anymore. Then once their stealing career ends we can enjoy a nice stout.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 15 Aug 2015 @ 8:44am

    All it'd take is a judicial rule that the plaintiff has to either present a trademark registration in the industry category the defendant operates in, or identify the specific activities or marketing of the defendant's product that encroaches on the industry category the plaintiff's mark is registered in. The PTO has standardized industry categories, so it shouldn't be that hard to nail down. It just requires judges who're willing to do their jobs even if it inconveniences the plaintiff.

    Then again, a lot of cases could be readily dismissed if Iqbal standards were applied the way it's been ruled they should apply.

    reply to this | link to this | view in chronology ]

  • icon
    Watchit (profile), 15 Aug 2015 @ 8:44am

    LMFAO at LMFAO C&D for LMFAO

    reply to this | link to this | view in chronology ]

  • icon
    hjumper (profile), 15 Aug 2015 @ 10:44am

    Who? And I don't mean the band WHO.

    Dumb is as dumb does. I smell a troll (rarely helpful to human beings - Wikipedia)

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Aug 2015 @ 12:15pm

    LMFAO in use since 2003

    According to an entry in Urban Dictionary from 2003, it means Laughing My Fucking Ass Off.

    This predates the formation of the band LMFAO by 3 years, which makes their trademark 'generic'. Seems like a pretty easy 'Motion to Dismiss" by just referencing the prior art.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Aug 2015 @ 12:50pm

      Re: LMFAO in use since 2003

      LMFAO was around as an acronym during the 80s if not earlier.

      reply to this | link to this | view in chronology ]

    • identicon
      David, 17 Aug 2015 @ 6:17am

      Re: LMFAO in use since 2003

      The "we have a very famous mark", in that it's only famous because they are piggybacking on the prior-art of the acronym. It was famous before them, not because of them.

      reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 17 Aug 2015 @ 8:16am

      Re: LMFAO in use since 2003

      And the term was in common use well before that. I saw it (along with the other standards like LOL) used frequently in various MUDs going back to the early '90s. I'm confident that their use is even older than that.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Aug 2015 @ 11:42am

      Re: LMFAO in use since 2003

      According to the dictionary on my desk, the word "target" has been used since the 1300s to reference an object to be aimed at in shooting, throwing, etc. This predates the formation of the store TARGET by several hundred years, which means nothing as to whether it can be used as a registered trademark, and it certainly does not make the trademark "generic".

      A trademark becomes generic when it goes from being the identifier of a specific source of a product or service to refer generically to the whole class of products or services (think Asprin, Rollerblade, Thermos, Frisbee).

      LMFAO would likely be considered an "arbitrary mark", as it is an existing word but it does not describe the goods for which it is registered. As far as being able to register an existing word, how many years a word has existed doesn't matter one bit.

      Regardless, LMFAO's registration is not broad enough, and the band is not famous enough, to stop the beer mark from becoming registered. The C&D is bad enough, but it would be sad if they tried to file suit.

      reply to this | link to this | view in chronology ]

  • icon
    Arioch (profile), 15 Aug 2015 @ 5:40pm

    Simple solution. The band play a concert with the brewery supplying the beer. The one that takes the most money keeps the name.

    reply to this | link to this | view in chronology ]

  • icon
    PopeRatzo (profile), 15 Aug 2015 @ 5:41pm

    Gain the money Oprah Doe!

    Whichever LMFAO is responsible for Party Rock Anthem, you think there's any chance they could get the death penalty?

    Asking for a friend.

    reply to this | link to this | view in chronology ]

  • identicon
    Philly Bob, 15 Aug 2015 @ 9:30pm

    WTF

    Is the band even relevant anymore?
    Were they ever?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2015 @ 6:51am

    Seemed like a good idea at the time

    The band and their attorney must have been drunk.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2015 @ 6:27pm

    If you look at how many bands have a branded alcohol drink

    then this isn't ridiculous at all. There are hundreds of band logo drinks out there, it's a big thing these days, so it is totally plausible that people would think it's the bands drink.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Aug 2015 @ 6:58pm

    What if they re-named their beer LMFAO Sucks?

    reply to this | link to this | view in chronology ]

  • icon
    cKarlGo (profile), 17 Aug 2015 @ 5:15am

    I'm not confused. Why? Because I've never heard of this band.

    Maybe Techdirt should poll the band fanbase to see if they are confused. How long can it take to talk to 17 people?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Aug 2015 @ 5:56am

    Now we just need League of Legends to go after all the uses of LoL online.

    reply to this | link to this | view in chronology ]

  • icon
    The Wanderer (profile), 18 Oct 2015 @ 2:34pm

    To be fair, there is some modicum of merit to the "likelihood of confusion" claims in this and similar cases.

    The logic runs roughly as follows:

    Bands and other famous entities often enter into endorsement deals for the promotion of unrelated products, which turn on associating the band or entity's name with the thing being endorsed.

    Some such endorsement deals go so far as to name (or rename) the unrelated product being endorsed after the band or other famous entity.

    The public is aware of this pattern, and knows that when they see the name of a famous entity on an unrelated product, it tends to mean that that entity has endorsed that product.

    Therefore, for an unrelated product to take the same name as that of a famous entity introduces the likelihood of the public being confused into thinking that such an endorsement deal has taken place, and that the famous entity is endorsing the unrelated product, even when the entity in question is not in the same line of business as the unrelated product.


    Of course, to allow this line of reasoning to prevail would completely eliminate the principle that a trademark only applies within a given field of business - or, even worse, would eliminate it only for famous trademarks, while those of less-successful brands would still have the lesser reach...

    reply to this | link to this | view in chronology ]


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