Victoria’s Secret Finds the Word “Delicious” Leaving a Bad Taste In Their Mouth

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In an effort to raise more funds, many non-profits have begun to add marketing to their repertoire. Some organizations come up with their own original symbols and catch-phrases, while others choose to creatively play upon campaigns they’ve seen other businesses do. (Lest we forget the THOUSANDS of witty variations on the “Got Milk” campaign?) The issue with the latter method is that businesses often times opt to trademark words and phrases so that others may not use them. And with trademark owners beginning to crack-down on infringement, more and more people are finding themselves slapped with infringement suits even if they weren’t aware of the original trademark.

What is a Trademark?

A trademark is a word, name, symbol, sound, color, or phrase that helps to distinguish goods and services manufactured or sold by others and indicate the marks source. In other words, when I see a shoe with the swoosh sign, I instantaneously know that shoe is manufactured by Nike.

What Happened with Victoria’s Secret?

Fortune Dynamic recently sued Victoria’s Secret for their use of the term “Delicious” on tank tops marketing a line of newly released products. The issue is that Fortune Dynamic, a distributor of women’s shoes, trademarked the same term “Delicious” for use on its shoes back in 1997. Two weeks ago a reviewing court overturned a previous decision by holding that consumers could possibly confuse “Delicious” on the tank tops as being affiliated with Fortune Dynamic’s shoes. This possibility of confusion means there has possibly been an infringement of the trademark.

Though the case has been appealed yet again it still raises some very interesting issues. For example, though the term “Delicious” appears in different colors, fonts, and typeface on the Victoria’s Secret shirt, the appellate court held the mere use of the same term, and the fact that in both instances it appears alone, could be enough. Moreover, Victoria’s Secret argued that the shirts only appeared in stores next to the new product line, mitigating any confusion as to whether the shirts are affiliated with Fortune’s shoes. However, the Court countered that once the shirts were bought and possibly reintroduced into the market (say, on eBay) then the new consumer would have no knowledge about the product line the shirt is affiliated with.

So What Can You Do?

First of all, if you have a mark vaguely similar to someone else’s, take a breath. No need to start the bonfire, and none of this is meant to be a scare. I just think its important to always have these kind of issues in the back of your mind. If a behemoth like Victoria’s Secret can get embroiled in this type of dispute, then anybody can.

Secondly, if you’re thinking, “So how do I avoid this nonsense altogether?” then you can possibly avoid alot of heartache by doing a quick trademark search. Its free, quick, and will tell you if anyone has registered something similar to what you’re wanting to market. If you come across a mark where you seriously have to think twice, save yourself the potential pain and think about going back to the drawing board.

Lastly, educate yourself. I don’t recommend running out to the nearest Barnes & Noble and purchasing every “Trademarks for Dummies” book in sight. However, do take care to make yourself vaguely familiar with what trademarks and copyrights are and how to avoid infringing them. The U.S. Patents and Trademarks Office has a fantastic overview here.

If you would like to read the opinion of the case (though I doubt most of you will) you can find the link here.

Also, for your viewing pleasure CNN has a really cool article on Famous Phrases Trademarked by Famous People here.