Things are moving along in the alleged trademark infringement case between local frozen lemonade makers Deb’s Lemonade and much-larger Del’s Lemonade up north. Roanoke Times columnist Dan Casey notes how Deb’s has received some local legal backup, and heavyweights, from the sound of them.
But let’s back up. While I might come across as one part naïf and another part ideologue, I can’t help but see the fatalism in the way our justice system handles IP cases such as this. Sure, Casey is just guessing at how much taking this case to court would cost, but if he’s even half right, then our legal system has a real problem.
When a company has been using a logo for thirty-six years, nine years before another company even files for trademark, it shouldn’t take $100,000 in legal paper-shuffling to decide that such a case is groundless. What would be the consequence of ignoring such legal threats until the case went to trial, and then presenting the evidence to a judge sans any lawyers acting in defense?
Would a judge have nothing of it, find for the plaintiff, and call it a day? In other words, is having a lawyer and spending tens of thousands of dollars the new sine qua non for any chance of a favorable outcome?
Probably not. Alas, when we hear about court cases, we’re apt to hear about dramatic cases because drama sells ad space. In reality, if Deb were to spend a whopping fifty cents on a stamp and mail a letter to the Rhode Island-based law firm making the threats and say simply: “I’m not paying you anything. I’m not discontinuing the use of my logo. And (most importantly) GFY,” I doubt it would spell automatic doom for her company. Tens of thousands in lawyers’ fees, however, just might.
Sure, I get it, she’s getting some free counsel, and good for the law-firm standing up for the little guy. But I grow weary of hearing about such cases because it implies a complete disconnect between average citizens and the law governing them. The day you need a lawyer to use the same logo you’ve been using since Jimmy Carter was president is the day our legal system has failed.
Of course, we do harbor silly ideas when it comes to the efficacy of the legal system. We think that threatening to sue someone is the same as successfully suing someone (far, far from it). We believe that every threat a lawyer makes is valid, and that any violation of the law is worth bringing to trial.
In reality, the Deb’s debacle will likely not even see the inside of a courtroom. The whole thing is far too redolent of the typical pay-up-or-else legal hectoring displayed by all sorts of law firms on behalf of rights-holders. But once the rights-holder finds out how much he’d have to cough up in legal fees to take this to trial, especially when it seems he could easily lose the case, it’s more likely he’ll just shake the proverbial fist and say something like: “I’ll get you next time!” or “You haven’t heard the last of Del’s!”
My sincere hope is that – in the meantime – Deb’s doesn’t lose any sleep or any money over it.