Thursday

PRIDE SURE DOES COME BEFORE A FALL... AKA...WHAT WERE THEY THINKING?

When I first began practicing law the daily New York City legal newspaper ran a series on several famous NYC lawyers from the late 19th and early 20th centuries. Each of these towering figures had been struck down because of hubris. Indeed, if I recall correctly, the series was titled HUBRIS.

The many modern definitions of the word hubris all seem to include an overconfident pride and arrogance. Suffering and punishment are often linked to the term.

Every once in a while the conduct of a trademark owner seems to fit squarely within the meaning of hubris- with the resultant suffering and punishment. Less elegantly I have often found myself saying to anyone who would listen"What WERE they thinking?" And by they I mean the lawyers as well as the brand owner.

The lawsuit and settlement between Google and American Blinds & Wallpaper Factory brought the word hubris squarely to the top of my mind. American Blinds has been battling with Google for several years over Google's sale of their trademarks as key words. Indeed, Google's sale of trademarks as key words has been, and still is, a red hot topic in US trademark law. Several lawsuits have been brought, with mixed results tending to favor Google.

And what of American Blinds? Their settlement agreement was nothing less than complete capitulation. But that's not the worst of it. In an earlier ruling the judge had declared that the firm American Blinds had no trademark rights in the term AMERICAN BLINDS. Not only that but the judge sanctioned American Blinds for abusive discovery practices and ordered them to pay Google $15,000.00. And their legal fees to get this kind of result? One can only imagine.

One can also imagine that from the day that American Blinds first discovered that Google was selling the terms American Blind and American Blinds, they had many, many opportunities to say to themselves " What are we doing here?'"What's the downside?"
or "Give me the worst case scenario".

But propelled by hubris, they become blinded(Ah Freud!!) to the infirmities of their case. Instead, the term American Blinds took on all the attributes of the term EXXON.

But make no mistake about it, American Blinds is not the first company to find itself suddenly acknowledging reality. I now add their name to my ever growing list of brand owners whose conduct makes one shake one's head and ask " What WERE they thinking?"

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