Awesome post, mkstewartesq!
I am SO going to name my Keeley Compressor Clone (actually a MBP Kompromat) the "KELLY KOMPRESSOR"
. (Just the one, for my own personal use, of course).
Sometimes, the products don't even have to be related.
Like when Make'N'Music (IIRC) first started having Custom-Ordered-from-Fender Telecaster/Jazzmaster mashups
back in 2005/
OR 09? — which of COURSE they called at-the-time-unique-to-their-shop the "TELEMASTER".
Unfortunately, some ... body (*neither person depicted below!) ... in the R/C-modelling hobby thought people might mistake a guitar for a model-aeroplane.
So now the TeleMaster Geetar's called something like Offsat Telefester or whatever.
First of all, thanks for the kind words.
With respect to the Telemaster thing, it sounds to me like either the guitar company didn’t get good legal advice or didn’t want to put the time and effort into proving itself right, because there’s no way under the law that the RC company had a legitimate claim that using the same name on a guitar was trademark infringement. The key question in trademark infringement is whether consumers are
likely to be confused into thinking that both products offered under the same trademark are made by the same company. This is why whether or not the two products are related in some way matters, because consumers often believe that the manufacturer of one product will also make other products that are related to the first product (if Michelin makes tires, it's likely to make wheel rims). But no reasonable consumer is going to buy a guitar thinking it is made by an RC company, or vice versa, even if they use the exact same trademark, so there’s no likelihood of confusion and, therefore, no trademark infringement.
(For purposes of completeness: there is a separate way you can infringe a trademark, even if your products are not even remotely related, called “trademark dilution“ – but that only applies where the trademark at issue is famous nationwide and is essentially a “household name”, like, say, Coca-Cola. I’m discounting trademark dilution here because I’ve certainly never heard of the RC Telemaster and I bet the vast majority of US households haven’t either).
I think that's one of the reasons EQD is successful.
Nothing (almost nothing) from EQD is named too on the nose. In fact, most names of their pedals don't even tell you what they do. What the hell is a Dispatch Master anyway? To dispatch something... must be a kill switch or something like that. Afterneath, the follow up to the Underbefore? Some kind of down-octave sub-resonance pedal? Disaster Transport Jr... Bit Crusher?
For sure EQD pedal names won't be something some other company came up with. Buzz
This is an excellent point. Trademarks are stronger and more protectable the less they actually describe the product offered under the trademark. This is because the public actually has to think for a second to connect the trademark with what the product is, which creates a stronger brand identity, which the law protects more from infringement.
On the other hand, if a trademark merely describes what the product does, the law doesn’t even really protect it as a trademark, because the public won't rely on that descriptive term to choose between two competing products. If I'm looking to buy Mac n Cheese and I see Kraft Mac n Cheese and Annie's Mac n Cheese on the shelf, I'm going to disregard the "Mac n Cheese" part and buy based on whether I prefer the stuff that has "Kraft" on it or the stuff that has "Annie's" on it.
There's also the fact that literally describing what a product does as your claimed "trademark" would prevent others from accurately describing their own products that do the same thing. Example: “MXR Distortion+”: it’s a pedal that creates distortion and if you gave MXR the exclusive right to put the word “distortion” on their pedal, then no one else could (accurately) describe a distortion pedal using that word. So their trademark is "MXR" but the "distortion" part is essentially free for anyone to use. Same for Boss's “Super OverDrive”, which merely describes that it’s an overdrive pedal of a certain quality (adding terms like "super" to a descriptive name doesn't count for much under the law either). Contrast that with trademarks that merely
suggest - but don't clearly describe - what the pedal does so the consumer has to put a little thought into it to make the connection – like Metal Zone or Tube Screamer.
EQD really does understand this principle and chooses trademarks that have no connection to the actual product (the law calls these "arbitrary" marks, because the connection between the chosen name and the product is essentially "for no clear reason"). The law considers "arbitrary" trademarks very strong, which greatly enhances EQD’s ability to stop people from using even arguably similar trademarks on pedals. The downside, for me at least, is that I can never tell what an EQD pedals is just from the name, so anytime I am considering building a clone, I first have to go on YouTube to hear a demo to figure out just what the hell the pedal might do. (I've built most of them, and I still get "Grand Orbiter", Dispatch Master" and "Disaster Transport" confused as far as functionality).
Mike
