Hipstering Trademarks: Of Vintage Signage Over New Stores

Hipster

Though IPEye usually focuses on intellectual property trends in the emerging world, we also focus on emerging trends pretty much anywhere. Which is why I thought I would write about the city that I live in (also something that I don’t usually do), in particular an interesting store signage trend here which may have some thought-provoking trademarking implications.

Toronto has long been regarded a global mecca for hipsters, and I don’t mean the pants. For anyone unfamiliar with the term, here’s a definition from the Oxford English Dictionary:

A person who follows the latest trends and fashions, especially those regarded as being outside the cultural mainstream.

Another, perhaps only slightly tongue-in-cheek definition comes from the Urban Dictionary:

Hipsters are a subculture of men and women typically in their 20’s and 30’s that value independent thinking, counter-culture, progressive politics, an appreciation of art and indie-rock, creativity, intelligence, and witty banter…..

And so it goes.

Anyway, one of the most endearing traits of hipster sub-cultures around the world is an attention to the vintage – whether it’s in clothing, collectibles and usables, or art and music, to remember and recreate iconic trends, events, and cultures with a contemporary twist. And one of the most obvious homages to things past, at least in Toronto, is the trend of keeping an old store’s signage when setting up a new shop in the same space.

Old Signage, New Store

Take this sign for instance.

Nazare

Formerly, know as “Nazare Snack Bar,” this popular live music and bar in Toronto’s Dundas West neighbourhood is actually called “The Communist’s Daughter.” While the place still serves snack-like foods, The Communist’s Daughter is a much-loved spot in its own right.

Perhaps the decision to keep the sign was an attempt to pay homage to the previous establishment, maybe the vintage feel of the sign added to the general demeanour of The Communist’s Daughter, or maybe the owner just liked the sign. Whatever the reason, the decision poses an interesting question for trademark law.

Of  Trademarks and Store Signs

As a general definition, a trademark is:

A symbol, word, or words legally registered or established by use as representing a company or product.

In Canadian trademark law, a trademark is:

  • (a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish goods or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others
    (s. 2, Trade-marks Act, R.S.C., 1985, c. T-13)

I often imagine a trademark like an arrow that points to product or service a business offers, and the stronger the trademark, the bigger and bolder the arrow is. And because a trademark indicates that it stands for a good or service to the general public, most trademarks are limited, and can only point to one or a few goods and services.

So now suppose someone wanted to trademark the name of the bar in question.

Here, The Communist’s Daughter is the actual name of the bar, but the older “Nazare Snack Bar” also points to the same place. If the former is what the bar is really called, and the latter is just an old sign, isn’t this confusing the “Ordinary Casual Consumer Somewhat in a Hurry” (or the average person passing by the street), which is the standard to measure consumer confusion in Canadian trademarks law?

Misdescriptive Trademarks and Dual Store Signage

So I thought the concept of misdescriptiveness in Canadian trademark law would save the day for hipster store signage trends.

Under Canadian law, a trademark can neither be “clearly descriptive” (like naming a restaurant “Restaurant”) nor deceptively misdescriptive (like “ANGUS BRAND” for processed meats which were not from Angus cattle, because the trademark is trying to point to a quality the product doesn’t have, since it doesn’t actually contain any Angus cattle meat).

But, this means a trademark can be just misdescriptive, i.e. describing something totally different than what the actual products or services are. So, in the case of the Communist’s Daughter, the Nazare Snack Bar signage could technically be misdescribing the product – which is a bar called The Communist’s Daughter, no?

Correct. Except a trademark also needs to describe the goods  or products and services in “ordinary commercial terms“, i.e. in common language presets for things that are defined by International Classes, or in a manual containing a glossary of acceptable terms. And I’m willing to bet that “The Communist’s Daughter-branded bar and food services” is not an ordinary commercial term.

So we’re back to square one.

Anyone willing to give this a shot?

Here’s another famous Toronto locale – The Dufferin Smoke Shop – now reincarnated as two separate stores.

Dufferin Smoke Shop

Have at it, give it a go. And if you figure it out, please let me know!

Cover Image: “Found: grungy pair of broken hipster frames“, danisabella, Flickr Creative Commons
Post Images: “The Communist’s Daughter” and “Dufferin Smoke Shop”; Source: Mekhala Chaubal, 2016.

 

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About: Mekhala Chaubal

Mekhala is a graduate of Osgoode Hall Law School, Canada with an interest in all areas of intellectual property (IP) law in a transnational context, privacy rights, and the development of IP in emerging economies. She is currently immersed in learning about innovation, entrepreneurship and the finer points of patent, copyright and trade-mark law as IP Legal Assistant.

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