Apparently, six years ago two people started a small music festival at a restaurant featuring local musicians performing on the back of a flatbed truck, a type of makeshift stage. At the time, the festival was deemed the Popcorn Sutton Jam, the namesake of a local moonshiner. Then this year, following a spate with the widow of Sutton, the event’s name was changed to “Hillbilly Woodstock”. That’s Woodstock as in the music and cultural festival from upstate New York during the rebellious years of the 1960s. This, as you might imagine, created quite a stir amongst Woodstock Ventures, LC, the owner of the WOODSTOCK mark. Actually, it’s more like a portfolio of marks that includes everything from loungewear to cultural entertainment services for kids. Living up to their name as zealous protectors of WOODSTOCK trademark supremacy, Woodstock Ventures made sure to get a C&D letter out quick.
Not believing that a little music festival serving a niche listening group could raise the ire of a cultural icon with name recognition from here to Vietnam, the bluegrass people “thought it was a joke”. But as we all know from war stories involving owners of storied trademarks, infringement is no laughing matter.
Perhaps the organizers of the North Carolina festival felt they were making a clever reference to the fabled music fest in a bid to inspire thoughts of nostalgia among concert-goers, but in the bluegrass style of music. Or perhaps the plan was to create a weekend of critique of the debauchery which was largely a byproduct of the counter-culture from the real Woodstock. My spiny senses (and a visit to the website) tell me the latter is probably not very likely, and that the point of the music festival is the very orthodox provision of good music and entertainment, no overt intent to comment on anything.
Maybe, just maybe, the festival organizers had doubts about the true trademark status of WOODSTOCK. They might have thought that “Woodstock” was simply a general name for outdoor concerts and, therefore, fair game for anyone and everyone to use. Some people not privy to proper trademark terminology call this action of falling into availability for general use the “public domain” because there are no restrictions on how the trademark can be used. But that’s not quite correct because public domain, a copyright legal term, has a certain spatial element to it Namely, that copyrights, being definite in their term of protection, expire at a certain point in time. Trademarks, on the other hand don’t have a statutorily-imposed time limit, provided the trademark owner keeps using the mark correctly. Instead, trademarks become generic through some action of the trademark owner be it neglect, licensing the mark to anyone and everyone without appropriate limitations, or just plain old using the mark improperly.
Unfortunately, the commonality of usage of a particular mark is not the touchstone of whether a mark has actually become generic and is, therefore, available for use by anyone and everyone. Quite the contrary, in fact; the more that a mark is used, the more likely it has acquired the holy-grail of statuses in trademark law: fame. If a mark is famous, no one can use it on anything, even if the trademark owner only makes one type of thing. On the other hand, if an entire segment of consumers is throwing a word around like confetti at a double wedding without regard to how it should be used or whether it is used on products actually made by the trademark owner (you know, like “Thermos”), then the mark is not even famous. It is generic.
That may have been what the bluegrass folks were thinking. If “Woodstock” is used in one form or another to generally reference any outdoor music festival, then it has fallen into that form of usage that makes it generic. Who knows where they might have gotten this idea. Maybe they came to that conclusion after seeing other music festivals like Cariboo’s Rock Stock, Green-Stock Music Festival, Woof Stock, Salmonstock, Hollystock, and Nowoodstock (and that was just from the first 2 pages of Google). So we have a bunch of music/arts festivals that are using the suffix “stock” in the name. Hardly convincing evidence that the name “Woodstock” would be okay to incorporate into a mark. At best, the plethora of other music festivals that use the word “stock” in the name is an indication that that portion of the mark is unprotected because it has meaning independent of the way that Woodstock Ventures uses the mark. Even that is a stretch because there is no other meaning for the word “stock” as used with a music festival.
But even then, a concert planner would be wise to avoid using the full mark in favor of some variation of the word “stock”, combined of course with a distinctive word. Using “Woodstock” was gutsy and probably just asking for trouble.
For now, the printed banners, bumper stickers, and shirts serve as an expensive reminder that it doesn’t pay to take liberties, even if you think that the ability of a trademark holder to claim exclusivity over a specific name has somehow been lost because of trademark use run amuck.