Post #528715 by Limbo Lizard on Fri, May 7, 2010 4:48 PM

On 2010-05-07 09:31, Swanky wrote:
Well, there is an older beer maker named Budweiser, and they can't import into the US with their name, so, age is not an excuse when it comes to trademark.

I don't think that's the same situation, though. If 'old' Budweiser had been sold across the U.S. for decades, before 'new' Budweiser entered the U.S. market; and, the name Budweiser was historically associated with the older brand, in more peoples minds... then, the older one could make a case that they had an earlier common law trademark, by long use, even if it wasn't registered with the USPTO. I don't believe it quite works the same as with a patent, where the one who registers it first, owns it, regardless of whether someone else had been manufacturing it for years, without patent. There is a common law component, with trademarks. That's why they warn you that, just because a trademark isn't registered with the USPTO, doesn't mean you can register and use it, without fear of legal action by someone who has been using it for years, perhaps registered with a state, or perhaps simply with "TM" next to it, on the label. Trademark attorneys specialize in this kind of research, checking state and municipal records, phone books, etc.

Of course, "Budweiser" is a brand name, like "Lemon Hart". In the case we're talking about, it would be as if Budweiser trademarked the word, "Lager" or "German-style", and insisted no one else could use it to describe their beer. To me, "Demerara" is both a geographic origin and a category or type of rum, with distinct characteristics. Even if Lemon Hart isn't actually made in Guyana, anymore, it still (presumably) would have the taste profile associated with the type, "Demerara Rum". Hey, we now call it 'Cognac', even if it's from California, right?