Protecting a Good Name

Tricks of the trademark--and the Battle of Bully Hill What's in a name? A lot of litigation, that's what. After a round of fisticuffs in New York federal court, the makers of Hawaiian Punch have just been walloped with a decision allowing a rival to market a similarly packaged tropical drink called Punch 'n Fruity. In Los Angeles, the Avis Rent A Car System, now owned by Norton Simon Inc., is wrangling with the auto firm's founder, Warren Avis, over whether he can use the Avis name to start a worldwide send-flowers-by-wire network. Competing national brewers have been in a ferment over such new sound-alike low-calorie beers as Light and Lite. Even nicknames can create legal hassles. The owners of the Paris-based International Herald Tribune have just gone to court to stop alleged trademark infringement by a proposed new Manhattan daily called the Trib.

Such quarrels over names may seem frivolous to casual consumers--that is, nearly everyone. But they are no laughing matter for companies that must constantly battle to protect their valuable turf in trademarks or risk losing them without compensation. Xerox, for example, spends some $100,000 a year for ads explaining that its corporate name is not a synonym for making a photocopy but the registered trademark for a specific process involving only Xerox machines. In the U.S. alone, the Coca-Cola Co. retains three lawyers to stand guard over the trademark "Coke." Other companies like IBM, RCA and Gillette also retain full-time trademark attorneys to keep products built by advertising into household words from becoming just household words. Even Britain's Freddy Laker has hired a Washington lawyer to protect Laker Airways' registered "Skytrain." Airlines, including Braniff, which applied for a no-reservation Dallas-London "Texas Skytrain" route, have already been warned politely but firmly to buzz off.

Such vigilance is necessary. Since the protection of trademarks was initiated a century ago, more than a million have been registered, but only about 40% still enjoy protection under federal law. Some have simply been abandoned by their proprietors (Bristol-Myers' Ipana toothpaste) or dedicated outright to public use (Du Font's nylon). Paradoxically, some of the most successful trademarks have been lost because of their very popularity; they became so firmly entrenched in the language that no single company could still legitimately claim ownership. Over the years, such casualties have included mimeograph, linoleum, cellophane, elevator, escalator, raisin bran and cola.

To protect trademarks clearly endangered by popularity, the owners of such familiar names as Kleenex, Jell-O and even Frisbee constantly monitor newspapers and magazines, television stations and the ads of competitors. They look for any use of their trademarks--say, without capitalization--that implies a wider, generic meaning. Offending writers or editors may get no more than a note or telephone call from the company urging them to avoid future errors. But when a potential rival violates a trademark, the legal battle may be heated.

One such case involves New York Winemaker Walter Taylor and the Taylor Wine Co., founded by his grandfather during the late 19th century in New York's Finger Lakes district and now owned by Coca-Cola. Taylor worked for the firm until 1970, when he was fired after denouncing vintners--including his company--that "adulterated" their product with "tank car," i.e., cheap imported wines. By then, however, he was already producing' limited quantities of his own private-label, "pure" wines from grapes grown only a short distance from the Taylor vineyards on a mountain called Bully Hill, outside Hammondsport, N.Y., that was originally farmed by his grandfather.

At first the Taylor company ignored the maverick winemaker. But when Taylor moved his name from the back to the front label on his bottles, and added such messages as "Bully Hill Vineyards--home of the original Taylor Family Wines since 1878," the company went to court and got a preliminary injunction against illegal use of its name. Said Taylor President Joseph L. Swarthout: "Our assets were in jeopardy, just as if somebody was trying to burn down the winery or punch a hole in the tank."

As well as a winemaker, Walter is a an artist, lecturer on oenology and operator of the Taylor family wine museum on Bully Hill. But he quickly found himself over a barrel. Because of the injunction, his lawyer said, he would not only have to change his labels but cease using his name on almost everything he did, including signing his paintings.

That order is being appealed, but the main skirmish remains to be fought in U.S. district court. Invoking provisions of the Lanham Act, the Taylor company is demanding that he stop using "Taylor" wine labels and is asking for treble damages. In defense, Walter's lawyers are saying that the Taylor company should have brought suit when it felt the first infringement occurred rather than waiting until business began booming. Company officials hint that they are willing to settle out of court if Taylor moves his name to he back of the bottle again, but he refuses to budge. Says the spirited winemaker from Bully Hill: "I'd rather be bankrupt and walking the streets as a pauper than not be able to use my name." -

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