The “Hon” Controversy

If you are from Bawlmer, you probably say “hon.”  It is a local tradition.  The word is a part of our local vernacular.  However, Denise Whiting, owner of a restaurant named “Cafe Hon” registered the word “hon” as a trademark with the federal patent and trademark office.  The registrations online (which Whiting has subsequently abandoned after a public outcry) include these uses: (a) retail gift shops (see: Hon Trademark Reg) (IC 035), (b) paper goods, namely, bumper stickers, napkins, note cards, gift cards, greeting cards, stationery, wrapping paper, gift bags, note pads, note paper, calendars, pens (see: Hon Trademark Reg 2) (IC 016), and (c) restaurant services (see: Hon Trademark Reg 3) (IC 043).  Ms. Whiting’s use with her restaurant was not controversial, as Cafe Hon has been around for quite some time in Baltimore.  The public outcry was over her registrations for various goods with the “Hon” logo.

Trademarks, whether registered or not, are intended to identify the source of goods of a product or service.  Trademarks, in one way or another, have been in use by craftsmen and traders for thousands of years.  Trademarks serve an important purpose in commerce today, in that brand names distinguish a particular maker’s goods from competitors.  Businesses may invest millions of dollars over time in building up brand name recognition with the public.  Brands, with time, become associated with a particular product’s quality or attributes (the taste of Coke is strongly associated with its mark, and distinguishes it from Pepsi and other soft drink products).

In the “Hon” controversy, the public outrage was over Whiting’s claim of exclusivity for gift shop goods. Interestingly, even though the baseball team, the Orioles, evokes strong public response and is strongly identified with Baltimore, there is not much controversy over their trademarks or their exclusive right to use those marks on t-shirts and baseball hats (and a whole lot of other merchandise based on their trademark registration: O’s Trademark Reg).  I suppose the public doesn’t claim to own the “O’s” (that’s Peter Angelos, hon), but is there that much of a difference?  I haven’t seen any bumper stickers inviting the Orioles to sue to challenge the “O’s” trademark registration.

Property rights, whether the right is to a physical thing or an intangible, are limited by certain public interests.  For a piece of real property, you have to pay your property taxes or risk the loss of title to your property.  The public may also have certain limited rights to enter your property (like the sidewalk that runs through the front yards of many homes in Maryland).  And the air roughly 100 feet above your home is not yours, either.  The exclusive rights in intellectual property are also limited by certain public interests.  For example, there is the concept of the “public domain” in copyright law.  Original works of authorship can be dedicated to the public domain, or end up there after a certain period of time from when the work was originally created (a work today doesn’t end up in the public domain for quite some time, but older works created before the 1920’s are generally in the public domain).

The Lanham Act provides the statutory basis for trademark registrations in the U.S.  Section 1052 identifies certain exceptions to the right to register a particular mark.  Unlike the U.S. Copyright Act, which provides for a “public domain” of works that otherwise would be entitled to protection, the Lanham Act has a much more limited set of circumstances that would prevent registration of a mark.  For example, immoral or deceptive marks can’t be registered.  The coat or flag of a state can’t be registered as a mark.  A living person’s name, portrait or signature can’t be registered without that person’s consent.  The mark cannot be confusingly similar to another registered mark.  The mark cannot be merely descriptive of the product (e.g., “Table” brand tables won’t work).  But, words in the public vernacular are not necessarily protected by these exceptions.  As subsection (f) notes, a mark that has become distinctive over time as to that person’s goods can be registered.

Irregardless of the Lanham Act, Whiting abandoned her marks after local outcry about “Hon.”  There was a strong sense among some in the public that “you just can’t do that” with the word “Hon.”  Some invited Whiting to sue them so that they could challenge her marks in court.  The Baltimore Sun ran a number of articles on the controversy.  Public opinion was against the registration of the word “Hon.”  Ultimately, Whiting abandoned or “Hon” marks in response to it all.  Tempest in a teapot?  Maybe.  But don’t mess with our “Hons.”