There is a future in which the text of the law fails to mean much of anything to those who wish to avail themselves of it, and instead it becomes merely a tool for stopping the things one simply doesn’t like. The latter pairs well with a mindset that the law is meant to protect you, and thus bind those who find themselves in opposition to you. In the space of intellectual property, it would mean going after any brand that used a logo or branding deemed too close to your own, without much time to sift through the relative merits of your case before potentially embarrassing yourself.
I say the future, but in fact the future is upon us already, and those who press those sorts of IP cases are seemingly legion. The latest of that ilk involves Ocean Spray, makers of everyone’s favorite cranberry drinks (provided you have a stomach for cranberry) and a company called Wedge Water. Typically stories involving one big corporation and one small business involve the former bullying the latter, but this one is a refreshing change of pace, pun intended.
As reported in TechDirt, Wedge Water sent Ocean Spray a cease & desist letter accusing the beverage brand of infringing upon their trademarks with its Ocean Spray Wave products. And given the disparity between the two, you might think that Wedge Water has an open-and-shut case, with a filing that is on-point and buttoned-up and any other idiom that fits. Alas, you would be quite wrong in those assumptions.
TechDirt’s story notes that Wave Water’s filing seems confused as to who actually owns the trademark supposedly violated, between Wedge Water and its Wave Soda brand. The C&D also seeks to compel Ocean Spray to stop using its own trademarks, a move that should be applauded for its audacity, if not its sense. Somehow worse still, the filing somehow makes a better case for Ocean Spray’s rights to the mark than Wedge Water’s: Ocean Spray’s trademark predates that of the plaintiff by several years, with no evidence that Wedge Water had been using any Wave mark prior to 2018 — well after Ocean Spray had obtained their trademark registration. Now, in addition to declaratory relief, Ocean Spray is also seeking to cancel Wedge Water’s trademark because, as they himself alleged, there is the possibility of brand confusion. And for all this they have no one to blame but themselves. As own goals go, it’s Diego Maradona against England in 1986, or Zlatan Ibrahimovic’s overhead bicycle from thirty yards out: stunning beyond words, and not to be replicated or attempted by mere mortals.
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