Hey guys, we’re back for Part 2 of the Fetish Friday this week, and before we start doing a wrist deep dive into the world of Adult Baby/Diaper Lover Litigation, let me first apologize for my absence this week. I’ve been busier than a one-legged man in an ass-kicking contest over the past week, rubbing hither and yonder to take care of some personal shit as well as juggling my case load, and it got in the way of getting this stuff out when I was planning to. sincere apologies.
So, if you weren’t around last time, know that I started talking about Adult Baby/Diaper Lovers, a community shorthanded into “AB/DL,” and giving a brief overview of exactly what the hell that is. But I’m not going to do that again here, because I don’t have the time of the inclination to spend an hour rehashing a post that’s already in existence. Click back through and read that shit, okay?
The reason for that whole thing was, very recently, a lawsuit was filed by one maker of adult diapers against another, and it wasn’t about moving into the pull-ups line, turning off Thomas the Tank Engine, of anything of that nature. Rather, it was a lawsuit about…trademark infringement. And that brings up an interesting question: Do they have a case, or are they just being big babies about all of this?
Goo Goo, Go-o Hire a Fucking Lawyer.
Few things I want to get started before you motherfuckers start freaking the fuck out: this is an academic and esoteric discussion. This is not fucking legal advice, do not fucking run out there screaming that the world is ending because a lawyer on the fucking internet said some shit to you. The laws I’ll be discussing are state-specific, jurisdiction, and fact specific, as are the interpretations of the same, and I’m only presenting them here as a means of having an academic and entertaining discussion on a subject. If you have legal questions, or you’re involved in any of the cases I discuss today, you should definitely have legal counsel that isn’t me, because I’m under no set of circumstances your lawyer, and this is definitely not legal advice.
You’re Not Being So Careful About the Jokes This Time.
Yeah, look, this is my schtick. I’m lighthearted, obscene, and I try to poke good-natured fun at folks and hope they understand that part of it. It’s what I do when I write these pieces. Rest assured, though, the last post that said all those nice things? That’s how I feel. I don’t care what the fuck people do so long as it meets the Big 3 (Not Illegal, Not Seriously Harmful, Not Nonconsensual). You do you, but I gotta get some humor injected into this one.
The Background – Someone’s Getting Grounded.
We got two players in this matter, wrestling like those kids at day care who are one day friends, the next day ready to beat the shit out of each other as they scream “MINE MINE MINE!” at the top of their lungs.
In one corner, with the padded posterior of an old pro, is Strom Holdings, LLC, the owner and operator of a brand called ABU, which is “ABUniverse,” which, of course, stands for “Anglers (and) Bass Universe,” the world’s premiere dealer of fishing lures. Or Adult Baby Universe. Probably the latter one.
[Hey, isn’t it a little neat the name of the company is “Strom Holdings?” I keep thinking about Strom Thurmond and deciding it’s appropriate, considering that Strom Thurmond was like 2,000 years old when he passed and almost definitely wore adult diapers from time to time. Maybe with little racist flags all over them. Wait…HEY GUYS! I HAVE A NEW BRAND IDEA FOR YOU! “Shit Opinions Plus!” When you wet them, the racist flags fade out to be replaced with copies of the 13th Amendment. My gift, to you.]
In the other corner is Tykables, LLC, a Chicago-based company that competes with Strom Holdings in the apparently lucrative niche market of providing gear and wear for the AB/DL community. The two appear to have been, for a not insignificant amount of time, friendly competitors, in that the court filings, the open court statements, and the affidavit of the founder of Tykables all indicate that they knew each other and spoke socially. That happens, believe it or not. Two people can compete in business and like each other personally.
Anyhow, back in 2015 ABU (which, let’s remember, is Strom Thurmond’s diaper company) began using the word “SPACE” in commerce in relation to the sale of adult diapers that had a neat little pattern on them and shit. Wait. No. Not shit. You know what I meant. I need more coffee today. They then went out and registered a trademark in the word “Space” as used in conjunction with adult diapers, which was granted back in 2016. And rather than just registering a trademark and sitting on it, ABU was shaking that padded, absorbent moneymaker for all it was worth, selling those diapers to the discerning AB/DL customer since 2015.
THEN MOMMA HAD A TWIN, APPARENTLY. Because recently Tykables decided they too were going to start selling large diapers with a space theme to them, and that they were going to market their diapers as the “Space Cadet” diapers. This, understandably, got ABU more than a little cranky, so ABU contacted Tykables and asked them to, you know, not do that. However, both had apparently missed naptime that day and the matter escalated, and escalated, and finally someone stuck a penny in an electric socket while Grandpa (who was supposed to be watching them) dozed off in the recliner and now we’re all in federal court making a judge listen to a dispute regarding the ownership of a trademark related to the sale of adult diapers.
So, will ABU win?
I’m gonna want your Hot Wheels before I concede to not making puns today.
“Space” is just a word, though. How can ABU own a word?
Okay, see, that’s a neat thing you hit on, so let’s talk about what a trademark really is.
First, ABU doesn’t own the word “Space.” ABU owns, according to the USPTO, the exclusive right to use the word “Space” in commerce as it relates to and identifies a product in the adult diaper market.
A trademark is simply a design or word that you use in commerce to designate the source or quality of your goods or services. It’s something that people so strongly associate with your products that you deserve protection, because otherwise people may use that word or design to try and pawn off their goods as being your goods and steal some sales from you. And the trademark office is pretty good about the registrations of these things in that you have to identify the area of commerce that your goods are related to, you dig?
So, for instance, you can’t have a trademark in a generic word like “Dog” for every type of commerce out there, but you could theoretically get a trademark in the word Dog for a limited market like, say, calculators or something. You don’t own the word, but rather the right to use the word in the specific market your trademark is registered in.
But “Space” has nothing to do with diapers.
And it isn’t supposed to. You can get trademarks for a lot of reasons, but they have to be reviewed and they have to be unique enough to the market that they’ll stand apart. For instance, if ABU had tried to register the word “Diaper” in the market, they’d have never gotten the registration. The term is simply too generic when it relates to the description of the market and the product for the USPTO to grant them exclusivity.
However, where a mark is arbitrary, it’s a stronger mark. An arbitrary mark is one that, outside of the use to identify a manufacturer, product, or service within the limited market, there is really no other association with the word to the product it identifies. Think “Apple” for computers for this example. You likely couldn’t trademark “Apple” for produce sales, but it’s arbitrary when it comes to computers: what the fuck does a fruit have to do with the ability to lord your Macbook over everyone else? It doesn’t.
Same applies here. “Space” is an arbitrary mark, which outside of ABU’s use has no real connection to the market of adult diapers. That’s why they get the mark in the first place.
Well, that and first use.
First use. Generally, the first person to use the mark in commerce, who uses it continuously, has the right to continue using it without interruption and infringement. Notably, this applies even if you don’t register the trademark. In the U.S., at both the state and federal levels, we tend to recognize what’s called a “common law trademark,” which is the right of a person or company to exclusively use a mark and protect it in court if:
- They can prove that, if the mark were filed for registration, they would be granted the mark and be entitled to use it, and;
- The person they’re suing has no registered, valid trademark in the mark.
Unlike copyright, the failure to register a trademark is not a bar to action on this matter at the federal or state level thanks to something called the Lanham Act.
But remember, the Lanham Act merely makes sure that you have a protected interest from the date of first use in commerce, and a common law trademark isn’t as strong as a registered mark. So, technically, ABU had the right to use the mark, and to bring action to enforce it, from September 24, 2015, and then solidified that right in 2016 when it was granted a registered trademark.
“Space” and “Space Cadet” are completely different, though.
Well, yeah, but the question isn’t “Did they add an extra word,” it’s “Is the use of the protected term such that it has a likelihood of confusing consumers in the market as to the source of the product.”
In many ways, the trademark laws act to protect the consumer as well as the mark holder. For instance, ABU says that they frequently use secondary words following the protected word to identify a product subcategory. So is there a likelihood of confusion present when you see a “Space” diaper, followed by a “Space Cadet” diaper in the same aisle of your local…
…That’s a good question, where are these things sold exactly?
When you add in factors like the space motif designs that are present on both products and things like that, the additional word doesn’t really alter the initial mark enough to make it distinctive.
Take it out of the diaper context. Let’s look at cars: “Space” is sort of ABU’s “Ford.” There’s a Ford Focus, a Ford Explorer, etc. Now say Chevy comes alone and creates a Ford Flight or something. Does the additional word, under those facts, really differentiate the new identifier from Ford’s mark in the mind of the buying public that they’d understand they aren’t buying a Ford?
Starting to get it? For the person not following this dispute who is in the market, would they, just looking at the packaging, the design, and the words used, be able to readily know that “Space” brand diapers and “Space Cadet” brand diapers are from two different manufacturers? If not, that’s the very case where a trademark can be enforced.
Can’t They Work It Out?
They are working it out. At least, they are in the way the law intended.
The law requires that a holder of a registered mark vigorously defend their rights in the mark or risk having it declared “Dead,” meaning that the mark is rendered unenforceable and therefore up for grabs. This, by the way, is way Disney sues preschools and shit: If you don’t defend your mark against infringement, you lose your mark. The result is situations like this, where ABU as a mark holder has to send out the cease and desist and bring the action in order to show to the world that they’re protecting their right to the use of the word “Space” in the adult diaper market. Otherwise, they risk losing the rights to a fairly lucrative brand name and the exclusivity that comes with it.
And it appears that Tykables is in the process of conceding to this in court with their attorney, as early reports from the hearings indicate that the two sides are currently negotiating a deal whereby Tykables can sell the remainder of their already-branded back stock, and then rebrand the diapers as something else.
C’MON TYKABLES, I GAVE YOU A WONDERFUL IDEA UP THERE. CALL ME.
And why wouldn’t they do this originally?
Well…possibly because Tykables had already sold some of the infringing product, and being in the same market in the same area and closely interconnected with ABU was definitely aware of ABU’s likely stranglehold on the word “Space” in relation to large diapers. This makes it a textbook case of “willfulness,” and when you’re dealing with a willful infringement of a registered mark you get into things like “enhanced damages” and “attorney fees” as well as the turnover of any profit received from the infringement. So, when contacted about it and told to stop, there are two options:
- Admit the infringement and possibly open yourself up to damages if the mark holder files a legal action anyhow, or;
- Tell them to go pound sand or file suit, then hire a lawyer to negotiate a quick settlement that admits no wrongdoing and spares you the expense of the handover.
So what you’re saying is…
Everyone’s being big babies, but incredibly sophisticated and business-wise babies. One might say…Boss Babies [see the Oscar nominated film!].
ABU has to defend their mark, which is registered and definitely valid. Meanwhile, Tykables can’t admit that it infringed without risking a huge loss on stock, re-branding, and possibly attorney fees. So the lawyers are involved, lawsuits are filed, and…the parties are working towards a general settlement that’ll likely see ABU agree to cut Tykables some slack in return for them ceasing the use of Space Cadet and never, ever branding their products the same way again.
Momma told me sharing was caring.
Momma never did trademark litigation.
Alright guys, that’s it for this go round. Next week it’s Furry Friday, and then back to the regular posting schedule.
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