Last week, The Popcorn Factory LLC, a 1-800-FLOWERS.COM company, filed a federal lawsuit for trademark infringement and cybersquatting against “Love Peace Popcorn” a Frisco, Texas family store. The store, run by the Paparella family, has a federal registration for the mark (#77,558,903) based on a first use in commerce since August 2008, and uses illustrations of a heart, a peace sign, and a piece of popcorn:
The Popcorn Factory has been marketing some of their products and related merchandise as PEACE, LOVE & POPCORN, but we could not find a federal registration at all and it is not claimed as a trademark on their website (no TM).
The complaint claims The Popcorn Factory began marketing products under the slogan “Peace Love Popcorn” and, curiously enough, illustrated by similar drawings of a peace sign, a heart and a piece of popcorn since the Spring of 2008.
On the face of it, this case will bring into question the rights of a federal registration (defendant) versus the common law use (plaintiff). The claim for cyber-squatting seems weak because the plaintiff does not have a registration. If neither party was aware of the other’s usage, as claimed, then actual damages may be hard to prove and the statutory route under cyber-squatting may be the only monetary award available. Of course, a damages assessment is necessary these days to support an injunction.
This is an intriguing case we shall follow with interest. Thanks go to the timeliness of the Chicago Breaking Business site for bringing this case to our attention.
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