Missouri Bar Responds To Cease And Desist From Starbucks With Epic Letter And $6 Check

[Jim Lane]

39. Copyright and trademark are different legal issues.

Copyright means that the creator of an original work has the exclusive rights to it during the life of the copyright. When the copyright expires, the work goes into the public domain, and no one has that kind of exclusive right.

Trademark means that the owner is using it to identify a product (goods or services) in the stream of commerce. The key is that the trademark owner is entitled to be protected from the danger of consumer confusion, meaning that someone other than the trademark owner is "passing off" a different product as being that of the trademark owner.

As others have commented, big corporations can throw their weight around and force small operators to give in regardless of the merits of the case. The small company could fight the lawsuit, win, and still come out very much the loser, because of the attorney's fees and the drain on the energy of the sole proprietor or the handful of people running the business.

If the cases were to go to court, with both sides sparing no expense: My guess is that, in the situation in the OP, Starbucks would win. "Frappucino" and "frappicino" sound the same, look very much the same, and both refer to a product that people can drink. On the other hand, in the "Sony's" case described in #3 upthread, I think the big company would lose. The product areas are so different (a diner versus consumer electronics) that there's no realistic danger of confusion. That was just bullying on Sony's part.