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Monthly Archives: January 2007 Posted by Seth on January 26, 2007 Engadget welcomes our new ant farm overlords

Sometimes trademark attorneys are a real pain in the ass. And as a former trademark attorney who also happens to be a former pain in the ass (and who might, d epending on who you ask, still be a pain in the ass), I speak from whence I know. The latest folks to learn what a pain in the ass trademark lawyers can be are the good peeps over at Engadget .     On Wednesday, Engadget posted an entry about a weird-ass little gadget , the mini-Antquarium, a portable little ant farm. In discussing this bizarre bugger, they said the following:

While we can’t exactly say toting an ant farm around our waist is on our list of hopeful accomplishment….

Let’s play a game - what’s the problem with that half-sentence? Anyone? Bueller? Bueller? Well, turns out that “ant farm” is actually a registered trademark belonging to Uncle Milton Industries, Inc. The trademark registration identifies the relevant goods and services as “ant vivaria” which are, you know, ant farms. So Uncle Milton sent Engadget a kindly little e-mail yesterday , requesting that the references to “ant farm” be removed and replaced with some generic phrase (they suggested “ant habitat”). Engadget basically told them to get bent, and that’s where things are. Now Uncle Milton is, of course, totally in its right to send a cease and desist letter like this. And if Engadget continues to take the “get bent” approach, Uncle Milton will be totally in its right to sue Engadget (and considering my use generic use of “ant farm” in this post, me too, I suppose). But I, for one, am highly skeptical of Uncle Milton’s likelihood of success in defending this mark. In their e-mail to Engadget, Uncle Milton claims that “[t]he phrase is not generic.” It’s all well and good for them to say it ain’t generic, but just ‘cause they say it doesn’t make it so. Let’s remember what a generic mark is - as our own definition explains , a generic mark is one that “cannot be protected as a trademark because it describes a group of goods or services and cannot distinguish one product in the group from another, providing any indication of source.” The best way to show that their mark continues to serve a source-identifying function, the very heart of trademark law, would be through the use of survey evidence. Now, what percentage of folks would say that, to them, the term “ant farm” indicates a specific source/supplier of ant habitats? And how many would, instead, say that they simply thought “ant farm” referred to any contraption with sand and mazes and what-not which holds ants? I’m guessing this survey would skew waaaaay against good ol’ Uncle Milton. But the bigger question here is, how much value can there still even be in the “ant farm” trademark? Are they making any money from it? Or maybe they’re just waiting for ant farms to get hip and cool again. If that’s the case, methinks they have a long wait ahead of them – hell, pet rocks haven’t even come back into fashion yet. Copyright © 2005-2008 QuizLaw GP