I’ve been reading this thread with interest, and digging through the Trademark policies and caselaw. It seems clear that the company has co-opted a common well-known mark. I have to wonder if the reviewing attorney was in Nebraska and had never seen a ship.
I did some searching for similar. We’ve all seen ‘common’ symbols and marks on clothing and other matter. I was thinking to examine stop signs or other traffic symbols and if anything had come of that–since that would be a parallel to a loadline mark. I found one–M22. The Michigan Attorney general opinion has some good caselaw references and buried in a couple of those, are a few more. It seems to me inherent distincitiveness of origin is part of the matter. Origination and public domain another. Has the mark, such as it is become, inherently distinctive with the originator (PlimosllGear) when applied to these products. I don’t think so. If anything, their own registration application identifies the mark as consisting of a ‘plimsoll mark’ - so they acknowledge a distinction to the mark in their application by reference to it’s proper name on its own, affirming its a well known mark, just demanding a questionable protection as ‘originator’ when used on clothes and such, but the distinctiveness just isn’t there. But it also over 5 years old and I don’t know how that will affect challenges. If no one has challenged for marking similar products in the fashion then sure, a case could be made, but because it is a well-known symbol, that has to be considered public domain… hmmmmm…
Anyway–interesting topic.
The MI Attorney General Opinion
NOTE: It’s not a true parallel, since that case differs here, since it was the marks true originator–Michigan–who had given it to public domain, and brought an action to prevent use by a commercial company which wouldn’t favor gCaptain’s use either and is different than two users with one claiming infringement. But, the opinion does present some useful considerations, especially marks that are in the public domain.
http://www.ag.state.mi.us/opinion/datafiles/2010s/op10344.htm
"Because the State of Michigan, the creator of the design, placed the Michigan highway route marker design in the public domain, no entity can lawfully obtain intellectual property protection of the design under trademark or copyright law. The two corporations at issue could not gain copyright protection over the Michigan highway route marker design because neither created the design. See 17 USC 201(a)-(b). And under the Supreme Court’s decision in Dastar, they cannot use trademark law to perpetually protect a design that they did not create and is in the public domain. The fact that they have appropriated the design from the public domain and affixed it to merchandise offered for sale does not create a legitimate basis for trademark protection. To do so would create a “mutant copyright” over works in the public domain that the Supreme Court has specifically sought to avoid. Dastar, 539 US at 34. "
Note: this is an AG opinion, not a court opinion, not caselaw. I haven’t dug through Dastar.
