Home » Copyright/Intellectual Property » Enforce Your Trademarks Now Or You Might Be The Next Red Hen

Enforce Your Trademarks Now Or You Might Be The Next Red Hen

26 June 2018

From Trademark & Copyright Law:

If you needed another reason to take action against a third party using your trademark – and you shouldn’t need another reason – consider the Red Hen restaurant.  Which Red Hen?  That’s the point.

As everyone by now knows, White House press secretary Sarah Huckabee Sanders posted a tweet over the weekend stating:

Last night I was told by the owner of Red Hen in Lexington, VA to leave because I work for @POTUS and I politely left. Her actions say far more about her than about me. I always do my best to treat people, including those I disagree with, respectfully and will continue to do so.

To say that this incident touched off a firestorm would be a massive understatement.  Many were outraged by what they perceived as a completely unjustified act of exclusion, and contacted the Red Hen restaurant to express their views in the form of harassing calls, fake orders, death threats and also (one would hope) expressions of displeasure delivered in a courteous manner.  Unfortunately, these critics did not always contact the right Red Hen.

For example, complaints started pouring in at the Red Hen restaurant in Swedesboro, New Jersey, even though it was hundreds of miles away.  Angry comments were delivered by phone, by Yelp, and on the restaurant’s Facebook page.  In desperation, the New Jersey restaurant posted this message on Facebook:

THE RED HEN IN SWEDESBORO, NEW JERSEY IS IN NO WAY AFFILIATED WITH THE RED HEN IN VIRGINIA.

We are an independent, family owned business who happens to share the same name.

Kindly check your facts before you erroneously defame an innocent business on Facebook in an attempt to destroy their business where they welcome all, irrespective of their race, religion, views or opinions.

Wishing all a safe and happy weekend!

You would think that such a message would discourage further Facebook posts . . . but you would be wrong.  Apparently, fired up internet users don’t always read the fine print, and the angry posts continued.  Elizabeth Pope, Operating Manager of the Red Hen in Swedesboro, told NJ.com, “People have no idea. They’ve dropped our rating from a 4.8 stars to three-point-something. People need to check the facts and do research before they make comments and try to ruin a small business.”

What is the lesson for trademark owners?  Be on the lookout for unauthorized uses of your trademark and shut them down wherever possible.  If someone has the same or a confusingly similar trade name as you and you let it go, the public may believe (mistakenly) that you are affiliated with them or responsible for their actions.

Link to the rest at Trademark & Copyright Law

PG says if you do a Google image search on “red hen trademark“, you’ll find several examples of people or organizations using “Red Hen” to identify themselves.

(If you are outside of the United States, you may receive different Google search results than those inside of the United States. If the whole Red Hen uproar makes you happy that you live outside of the United States, PG understands completely.)

Copyright/Intellectual Property

19 Comments to “Enforce Your Trademarks Now Or You Might Be The Next Red Hen”

  1. Richard Hershberger

    Nothing in the linked article gives any reason to believe that the New Jersey establishment has a better claim on the trademark than the Virginia place. From the latter’s perspective, having some other place to absorb some of the crapfest is a clear win. More to the point, we are talking about a crapfest perpetrated by dumb people. Names different enough to avoid trademark infringement are far from guaranteed to be different enough for dumb people to figure out the difference.

    • Felix J. Torres

      Those “dumb people” just might be “dumb” enough to do more than just post negative reviews online.

      Because blind rage breeds blind rage.
      They’ll be lucky if negative online reviews is all they get. Because they just set themselves up beautifully for a SWAT-ting.

      “911.”
      “This is the Red Hen in Lexington! Quick! There’s a deranged guy in a black trenchoat with an explosive vest threatening to blow the place up!”

      https://en.m.wikipedia.org/wiki/Swatting

      • Richard Hershberger

        Sure, but my point is that these are dumb enough to make that call on the Red Hen in Swedesboro, or the hypothetical Red Hat in Swedesboro. What can and should be said about the state the country has come to is endless, but trademark enforcement is pretty much entire not on the list.

    • Yes, dumb people. Just about anywhere I have seen it, Ms. Sanders’s entire tweet has been reproduced – and it specifically identifies the restaurant in Lexington, VA.

      • Felix J. Torres

        Uh, the point of the OP is about consumer confusion.

        The only “dumb” thing the raging ones have done is assume that the RED HEN restaurants are a chain rather than a bunch of unrelated businesses all using the same trademark.

        In today’s litigious environment that is not a particularly dumb assumption. If you hear that somebody was killed at a Red Robin or Applebee’s or Friday’s in another state your expectation would be that they are related to the one near you. Because if they weren’t, somebody would’ve sued them.

        At this point it doesn’t matter who might own the RED HEN trademark, if anybody does, because the consumer confusion that trademarks are supposed to prevent has already happened.

        • Yes, I actually did assume it was a chain or a franchise. But since it was clear one “owner” made the decision, it was also clear than any other restaurants were not to blame.

          And yes, PG, for now I am glad I live elsewhere… *hugs for everyone*

          • Felix J. Torres

            Exactly.
            This sort of thing happens repeatedly with franchised chains like DENNY’S and with corporate chains like STARBUCKS. Something distasteful happens at one site and the outrage splatters the whole chain.

            Guilt by association.

          • It gets particularly confusing with franchises, where they *are* related, technically, but each one is locally-owned and the problem came from management at the local level and therefore has nothing to do with the local branches in other areas. But I guess that’s just one of the risks of having a franchise instead of your own independent business. You’re associated with all those other branches for better or worse, with all the pros and cons that come with it.

            • Felix J. Torres

              It used to be mostly pros but lately the cons are growing.
              Going Indie is becoming attractive in many businesses. 😉

  2. It’s getting ridiculous. But we already knew that.

    The NJ establishment may find people rallying to ‘their’ restaurant, and crediting them with the guts to ask Ms. Huckaby to leave – could benefit them as well. They should seize the opportunity for publicity that points out they are ‘not that other restaurant in Virginia.’ However they want to make themselves be seen.

    Carpe free publicity.

  3. There was a Red Hen in DC who is unaffiliated that was getting bombarded on twitter about this as well. From the looks of it, whoever ran that Twitter account had permission to get snarky at people.

  4. “If the whole Red Hen uproar makes you happy that you live outside of the United States, PG understands completely.” We’re 10,000 miles away and it still makes me ill to see what America is becoming. I wonder if there are any places left on that first shuttle to Mars…

    • Felix J. Torres

      Why do you think Musk is so eager to get off the planet?

    • The problem with any extraterrestrial human colony is that it would still be run by humans. And in those cases, when stuff like this happened, there’d be no where else to go to get away from it.

    • it still makes me ill to see what America is becoming

      America isn’t becoming anything it wasn’t already. What is happening is that media is doing an increasingly excellent job of playing a game that Eric Berne classified as “Ain’t it awful.”

      I, for one, refuse to join in.

      The short book can be dry but stick with it, it is an eye opening read: http://rrt2.neostrada.pl/mioduszewska/course_2643_reading_3.pdf

  5. All they have to do is change their voicemail message and and their home page:

    “Hi, you’ve reached the OTHER “Red Hen.” We’re probably not the ones you’re looking for, but since you’re here, check out our menu or wait until after the beep to make a reservation… we’d love to get your business!”

  6. Seems like this is a good lesson in trying to find as unique a name/imprint/title as you can, and not just go with one that’s already in use because you can. Legal issues aren’t always the only issues. If you think you’re okay to use the name/pen name Bob Smith because you write thrillers and that other Bob Smith writes sci-fi, you might want to think of what could happen of that other Bob Smith goes on a racist rant on Twitter or something. (Yes, even if it’s your own name. Readers won’t care whether it’s your legal name or a pen name.)

    • Felix J. Torres

      Yup.
      It also makes pen names more attractive; there’s no telling what nutjob out there might fail to distinguish between character opinions/actions and author positions.

  7. “People need to check the facts and do research before they make comments . . .”

    Now there’s a quaint idea. lol

    I thought the standard was you can say anything you want, facts and feelings be damned. When no standards is the standard, this applies to everybody.

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