Knocking Down Heaven’s Door?

Subterranean Homesick BluesA few weeks back, I wrote about the new foray into the whiskey business by a certain Nobel laureate.  Mr. Dylan’s new venture, Heaven’s Door, takes its name from one of his more popular songs.

Or does it?

The good folks at Heaven Hill don’t seem to think so.  On August 17 they filed a complaint for trademark infringement, trade name infringement, and unfair competition.  Their basic allegation is that “Heaven’s Door” is too close of a name to “Heaven Hill” – their registered mark.  By using Heaven’s Door, they argue that Dylan’s cronies are taking advantage of all the goodwill that Heaven Hill has in the the marketplace (and all the expense that Heaven Hill has incurred to generate that goodwill). You can read a copy of the complaint here: Heaven’s Door

Having read the complaint, I’m not convinced.  In fact, I’m not even impressed.  It seems to me that there are at least two significant problems with Heaven Hill’s argument.

First, I think the likelihood is that you would only confuse the names “Heaven’s Door” and “Heaven Hill” after you’d consumed about a half a bottle of either one.  Given the marketing blitz around the fact that Heaven’s Door is a Dylan project, my guess is that meaningful number of people (perhaps most) who try the whiskey are going to try it because Dylan is involved.  [In fact, to the extent that there is any consumer confusion, my suspicion is that it would work in favor of Heaven Hill, causing some whiskey neophytes to try Heaven Hill because they think it is somehow associated with Dylan.]

Secondly, and perhaps more significantly, as one of my partners who practices in trademark law pointed out to me, the Heaven’s Door trademark application sailed through the USPTO without a hiccup.  So the USPTO itself didn’t seem to think that there was a reasonable likelihood of consumer confusion between the two marks.  That isn’t necessarily fatal to Heaven Hill’s argument – but it certainly doesn’t help.  Plus, their own expert only concluded that there was a “net confusion rate” of 39% between the two brands – based on a survey that he constructed and conducted.  When you consider the fact that surveys can be structured in such a way as to support essentially whatever conclusion you desire, that 39% figure doesn’t feel particularly impressive.

Only time will tell whether Heaven Hill will prevail.  The fact that they brought suit in their backyard of Kentucky [while Heaven’s Door is headquartered in Chicago] is probably in their favor.  But the merits of the case don’t feel especially strong.  My guess is that this one, like most lawsuits, will be settled before it ever goes to trial.

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