My understanding of the trademark law, as an owner of several trademarks, is that once the owner becomes aware of someone using the trademark, it is my responsibility to protect the trademark. If I do not defend the trademark against everybody, I can’t defend the trademark against anybody. My obligations as the owner is to 1) use the mark (and be able to show documented examples of continual use) and 2) defend it.
This is why you see all these mom’n’pop operations getting letters about infringement. It’s also why you see major corporations like P&G or Coke or L’Oreal suing their distributors like Costco or Walmart over store brand packaging. If Coke lets Walmart of Safeway put their store brand cola into a specifically color red can with script writing and a capital “C” for cola that waves the length of the can under the work cola…they’re gonna get a letter and maybe a lawsuit if they ignore the letter. Seems weird to sue your biggest customer but it happens all the time for the same reason Starbarks or Sony’s get a letter. The law makes not accommodation for little guys infringing.
And if Coke doesn’t defend it against Walmart today…next week, when Pepsi puts their color in a package like that and Coke DOES sue Pepsi…Pepsi’s defense is ‘but they let Walmart do it”….and that’s how former trademarks like refrigerator, aspirin, escalator, and AppStore became generic. It’s also why you hear the phrases “Kleenex BRAND tissues” or “Xerox BRAND copies”…these guys are trying make sure their trademarks don’t become generic through use as a general noun or very.
IANAL but have been schooled on this one (a lot) about my responsibilities as an owner.
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