from the sprechen-sie-deutsch? dept
We talk a great deal of the problems that are created when the government approves trademark applications for words that are either common or generic. But does the generic nature of a word change when that word is foreign in nature? We won't have a definitive answer to that question in this case, but we certainly will see some of the problems that could arise.
Hofbrau Steak House and American Grille has been serving up German food in Northern Michigan for over six decades. Staatliches Hofbrauhaus has been brewing beer and operating eateries since the late eighteen-hundreds. Yet it was only recently that the brewer sent letters to Hofbrau demanding it change its name, claiming that it had a trademark on "hofbrau."
Hofbrau Steak House & American Grille shared the news on Facebook Wednesday, along with photos of a letter from Staatliches Hofbräuhaus, HB, that demands the Northern Michigan restaurant change its name.Now, we could analyze the likelihood of confusion for eaters in Northern Michigan between a local restaurant and a massive German brewery. Or we could try to parse out whether Hofbrauhaus is actually competing with the restaurant in that market. Those are worthy discussions to have, but I would rather point the finger at the USPTO for approving a trademark on "hofbrau" in the first place.
"Hofbrau NO more?!? Well, after all these years, it's looks like everyone's favorite Interlochen hangout is in need of a NEW Name!!," the owners wrote on Facebook. "..., HOW do you come up with a name?? We are asking for your help!"
The letter from Hofbräu München states the Munich brewery owns the trademark to Hofbrau and has used it since as early as 1894.
The word "hofbrau" is a shortened version of the longer German word "hofbrauhaus", from which the brewery takes its name. You might think that this would strengthen the brewery's claim, except that looking into the definition of the word brings with it questions about why the trademark was ever approved in the first place.
nounIn other words, the word means German restaurant or tavern. If that isn't the very definition of a generic mark, then I don't know what would be. It's like trademarking "cafeteria", but in Spanish. Does a foreign language version of an ultra-generic trademark suddenly render it permissible for trademark enforcement? Every reasonable intuition screams "no", particularly in America, the cultural and national melting pot that we are.
1. an informal, German-style restaurant or tavern.
So, whose fault is it that a small eatery in Northern Michigan is now going to change its name after sixty years of use? The brewery, yes, but the trademark office first.