Name game sparks legal controversy

Shane Thompson is not out to disrupt the Westobou Festival. But his design firm, Westobou, recently won a trademark on their name.

It seems to have sparked some kind of confrontation between the two organizations. They each have been buying up Internet domain names around each other in a race for — well, more Web sites, it seems.

Westobou, which owns westobou.com, also bought westoboufestival.org and set up a blog about the festival and its trademark dispute. The festival then snapped up westobou.info and westobou.us, along with westoboufestival.net, .us, .info and .biz.

On the advice of his attorney, Thompson declined to comment. But Shannon Lanier, chairman of the Westobou Festival Steering Committee and an attorney, felt comfortable dismissing the design firm’s claims.

“No one owns a term for all uses and all purposes,” Lanier said. Simply put, “As long as they are distinct goods and services, the same word can be used.”

Lanier pulled props out of her bag to make her point: a bottle of Tide detergent and another of Cascade; a container of Secret underarm deodorant and a tube of Crest toothpaste. The United States Patent and Trademark Office lists 459 trademark records for the word Tide, 530 for Cascade, 3,186 for Secret and 1,163 for Crest.

A trademark protects your product, Lanier said. The U.S. Patent Office said that can include any word, name, symbol, device or any combination, used or intended to be used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

Simply, if Tide detergent faced competition from Tide2, they could oppose the trademark application for the upstart company. But if a company called Tide appeared and offered scuba-diving services, they would have no standing in court.

The trademark application for Westobou design firm states that they oppose the festival’s granting of a trademark on the grounds that the market and the services and products offered by the festival are identical to those offered by the design firm.

And yet, on their blog forum, the company says the point lies in whether the names create public confusion. The design firm listed advertising, marketing and promotion services, while the festival listed entertainment in the nature of live music and cultural festivals.

“By these descriptions,” the blog states, “they do not directly conflict, unless Westobou provides entertainment/festivals or Westobou Festival advertises or promotes anything that is not directly themselves. All in speculation of course.”

Festival Managing Director Kathi Dimmock declined to comment on the specifics except to say that the two trademarks, Westobou and Westobou Festival, are separate. Can the name be trademarked? In some ways, it’s like trying to trademark “Savannah,” seeing as how the word is the Native American name for the river.

However, on Westobou Design’s blog at westoboufestival.org, the unnamed site administrator said that since the term is not the name of an actual group of Native Americans, has not been used for more than 300 years, is no longer a geographical marker and is thus no longer a common term, the word can be trademarked.

Lanier argues that the term is in use. There is Westobou Crossing, a real estate development, and a band named Westobou. But Thompson played drums in that band, and his father owns the real estate development.

“It has been in use,” she said. “It is that he opposes anyone else using it for any purpose.”

Westobou Festival chose not to oppose the design firm’s trademark filing on the grounds that the two organizations offer separate services. The firm obtained their trademark on Oct. 15, 2007, and the deadline for disputing their holding passed on Jan. 24. The firm filed a Notice of Opposition against the Westobou Festival trademark on Feb. 12.

“We sure didn’t start it, but we will finish it. We have to be serious about the situation because we’ve already began dealing with confused clientele,” the administrator posted on Jan. 13.

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