from the moron-in-a-hurry-to-a-bathroom dept
We've seen plenty of strange, even laughable, trademark spats around here. What can get lost in the kind of ownership culture we've collectively created is that trademark is chiefly built around the concept of avoiding customer confusion. With that noble goal in mind, businesses are allowed to reserve the right to use specific marks that act as identifiers for their brands. One of the tests that's commonly referenced to determine whether there is the potential for customer confusion is: would a moron in a hurry be confused by a given use between two competing companies?
Except nobody ever bothers to tell us to where that moron is hurrying. Given the trademark battle between two portable toilet companies, however, the answer may be: to the bathroom.
Two portable toilet vendors are engaged in a trademark dispute over using the state's outline and Lone Star to adorn their outdoor loos. Texas Outhouse of Houston, which trademarked its version of Texas-and-star earlier this year, has sued rival Texas Waste, claiming the Alvin company's use of similar images has diluted Texas Outhouse's "iconic" brand, making it difficult for users to distinguish portable toilets and suggesting that the al fresco powder rooms are the same.
This certainly conjures a strange image in the mind, one in which a person squeezing back nature rushes to a portable toilet and takes the time to concern him or herself as to which company's receptacle they are about defile. This is likely not the argument that Texas Outhouse will make in court, however. After all, the customer in this case is not the user of the mobile bathroom, but is rather whoever is contracting their use, such as event planners, municipalities or outdoor concert venues. They're the customer, not the folks with the full bladders.
It's worth noting that logos involving Texas' state outline and the star have in the past found to be not deserving of trademark protection.
Texas Outhouse v. Texas Waste is not the first tussle over the use of the Lone Star in company logos, said Jane Langdell Robinson, who handles copyright issues at Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing in Houston. In 2010, in a case involving two self-storage companies, the U.S. Court of Appeals ruled that the iconic image of Texas is not inherently distinctive and can't be legally protected as a trademark. She said she expects the courts would have a similar view of using an outline of state.
Which only makes sense. Regional companies doing business can choose to adopt the state outline and state symbols as their logos, but it would be strange to suggest that other regional companies would be prohibited from that same use. You're all Texans, after all, and the state image and star are wonderful identifiers of the region a company calls home, but are less clear in acting as identifiers for the company itself. So the question in this suit will likely come down to the actual customers' chances of being confused between the two companies and whether the logo in question should be protected by trademark at all, in the first place, with the latter potentially cancelling out the need to answer the former.
Jacqueline Lipton, a law professor and codirector of the Institute for Intellectual Property and Information Law at the University of Houston Law Center said the case will come down to two issues: Whether there a protected trademark and whether customers are likely to be confused by the similarities of the logos. As she delved into the doctrines of intellectual property law, she stopped herself for a moment: "I can't believe I'm talking about outhouses."