I received my latest bit of trademark happenings from this weekend’s Saturday Night Live Weekend Update, not a colleague’s blog. Skee-Ball, Inc., the owner of Skee-ball games filed suit against a company that runs Skee-ball tournaments under the moniker “Brewksee-Ball.” Whoops. Looks like the tourney company didn’t get a lawyer’s clearance on this one before they came up with the name. Not only is the Skee-ball mark an incredibly famous one, but it is highly distinctive trademark because it incorporates a fanciful word that has no meaning, and thus, no connection to the game on which it is applied. The obvious defense is that the Skee-ball mark has become generic, but I’m not so sure there are other manufacturers of this style of game, even though the public certainly knows the game by that particular name. I, myself, have trouble coming up with a generic name for the Skee-ball game without delving into a long patent-type description like a game including an upstream ramp and a downstream arrangement of concentric annular goals….
While I think there is otherwise a pretty clear prima facie case of infringement here, the transformative nature of the mark should add a slight wrinkle to the case. Does the addition of “Brew” to create “Brewskee,” a slang term for a beer, push this new phrase far enough away from the trademark that is clearly different? Of course, this may not even be brought up given that the mark has very likely become generic.