Blew out my flip flop

usptoAs a young couple in central Florida, my eventual wife and I engaged in a somewhat unusual form of courtship.  We spent a lot of time fishing – with her mother.  There was live bait involved.  As I said, it was unusual.

Much of the time fishing was spent on a pier in the very small (and perpetually hurricane-threatened, the pier may no longer exist) town of Cedar Key.  Memories of that courtship include the smell of salty sea air and the feel of wind-chapped lips.

One other memory is particularly salient.  The pier upon which we would sit for hours was directly across the water from a seafood restaurant that featured nightly entertainment. Every night the entertainment was the same – a fellow with a guitar sitting in front of a microphone and trying desperately to channel his inner Jimmy Buffett.  It wasn’t always the same imposter – but it was always Jimmy Buffett – so the fishing was always accompanied by the melodious if slightly off-key strains of Margaritaville.

I was reminded of those evenings this past week when I ran across the case of Margaritaville Enterprises, LLC v. Rachel A. Bevis – case nos. 91219403 and 91221395 at the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board.

To my knowledge, Rachel Bevis is not a Jimmy Buffett impersonator.  I believe it is unlikely that she spends much time crooning selections from Changes in Latitudes, Changes in Attitudes to people noshing on fried shrimp and clams.  But in a world where Margaritaville – described by Mr. Buffett in TTAB filings as the “state of mind inspired by margaritas” is now launching a planned retirement community in the state of my birth (and the aforementioned courtship) – Mr. Buffett needs to be relatively diligent in protecting his brand.  And that’s where Ms. Bevis ran into trouble.

Bevis is a Colorado-based entrepreneur who planned to open a chain of retail and clothing stores under the name . . .  wait for it . . . Marijuanaville.  As those following the unique development of state-authorized cannabis businesses are aware, it is almost impossible to register a federal trademark which covers cannabis itself because of the status of the plant under federal law.  But cannabis entrepreneurs are moving forward on a number of fronts in seeking (and obtaining) registered marks covering other aspects of their business.  Ms. Bevis was part of that trend.

But of course Ms. Bevis should (and did) still have trouble free-riding on the intellectual property rights of others.  If Margaritaville is a description of a state of mind inspired by margaritas – and if Margaritaville is now “famous” for purposes of trademark law (as the TTAB said was the case in the ruling on the matter), then Ms. Bevis unfairly infringes on Buffet’s rights when she tries to launch a commercial Marijuanaville brand.

She didn’t exactly step on a pop-top, but she certainly did cut her heel and have to cruise on back home.

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