• How Not to Manage a Brand

    by  • February 17, 2014 • trademark • 0 Comments

    I’m very interested in C.F.M. Distributing Co. v. Costantine, a case about a failed franchise and a son’s effort to revive it. The effort failed because there were so many former uncontrolled licensees that the Trademark Trial and Appeal Board held (as affirmed by the Federal Circuit) that the applicant was not the owner of the mark. The decision involved two design applications for “Maryland Fried Chicken” stores:

    From TSDR

    Ser. No. 77497042

    From TDSR

    Ser. No. 77402411

    One of the definitions of “abandonment” is where “any course of conduct of the owner, including acts of omission as well as commission, causes the mark to … lose its significance as a mark.” Lanham Act § 45; 15 U.S.C. § 1127. This is one case that vividly demonstrates that principle, that is, a symbol that has every characteristic of a mark nevertheless can lose that significance when there is no effort to maintain uniformity of use.

    As demonstration, below is a collection of the signs for many “Maryland Fried Chicken” restaurants, mostly in Florida, Georgia and South Carolina, taken from Google Street View. Be on the lookout in particular for:

    • A sign that says “Rice Bowl, Chinese Cuisine”
    • Three barbecue restaurants
    • Three shrimp restaurants
    • Two signs for the “Original” Maryland Fried Chicken that use a different chicken (and plenty of signs without a chicken at all)

    Sign closeup rev3 sharpened

    One of  the TTAB’s comments on the state of affairs:

    The members of the public in the southeastern portion of the United States, and especially in Central Florida, have been faced for decades with products and services bearing visually similar Maryland Fried Chicken trademarks and service marks. However, with each outlet having such diverse qualities, we find that these logos have totally lost any of their earlier abilities to identify a sole source. It would seem at this late date that very few members of the consuming public in Central Florida (or elsewhere) still contemplate a single enterprise as standing behind the Maryland Fried Chicken products or services. Those few who do anticipate the consistent quality of the prototypical franchise operation will likely find themselves disappointed as they take their business from one Maryland Fried Chicken outlet to another.

    For the Bob Marley bonus, as well as more Street View images and other evidence in the case, click here.

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