Blowin’ In the Wind

Black clouds overhead, old man says looks like rain. Thieves’ Road winds to the Black Hills sign.
/Pale Sun, Cowboy Junkies

Every day these days feels like it has a black could overhead. New revelations, new worries. But even with so much uncertainty in the air, we trademark junkies can find something to write about other than panic and pandemic.

I was out for a brief dose of sun and fresh air, walking along deserted streets with my rambunctious dog when I came across two bright orange road signs. Both were broken, crumpled, bent over to the ground. Could the Covid-19 be so potent as to level even these rugged devices built to withstand heavy winds and other physical adversities?

As my dog began dragging me to the nearest shrub for some satisfying sniffing (by him, not me), I noticed that the crippled road signs each had twin plastic orange springs at the base. And instantly, I recognized the source. These were signs made by TrafFix, the company that years ago had famously sued to protect its orange dual-spring design as a trademark. The case was TrafFix Devices, Inc. v. Marketing Displays, Inc. It made it all the way to the U.S. Supreme Court, where TrafFix’s trademark hopes were dashed by the Court’s unanimous decision. The Court held that no matter how recognizable those dual-springs might be, (as they were to me) trademark law can’t protect them because they are functional features whose main purpose was bolstering street signs against the wind and elements, not serving as a brand. The Achilles Heel for TrafFix’s trademark claim was another form of intellectual property–a utility patent. The patent covered the very characteristic that TrafFix sought to protect by trademark, leading the Supreme Court to conclude that giving TrafFix trademark rights on top of its patent would unfairly give TrafFix a perpetual monopoly on a useful feature and put other companies at a competitive disadvantage.

The TrafFix case thus joined a body of famous trademark cases that, like modern celebrities such as Kanye, Madonna, J-Lo, and Shakira, are known simply by one name. (I’ll cover others in future posts.)

Pulling my dog away from the felled road signs, their “Caution” warnings flattened by some mysterious force, I glanced up and saw a trio of mature cherry trees in full bloom across the street. That they had been planted in front of a funeral home did not dim the thrill of seeing the delicate, ephemeral pale pink blossoms. We may not be able to go to see the annual wonder of cherry blossoms draping the tidal basin and Jefferson Memorial like a gauze tapestry, we know that Spring is here, even if a few TrafFix springs, and ourselves, have seen better days.