Antitrust Law And Trademarks

Trademark law is part of a larger body of law known as "unfair competition law." In the U.S., we really want everyone to be able to compete freely. We have decided that, as a general proposition, free competition serves consumers and businesses. The caveat to this general proposition is that we expect competition to be "fair." Not as in "life is not fair" fairness. Rather, in the sense that we do not want any business to use "dirty tricks" to get an upper hand in the marketplace.

Unfair competition law not only prevents the use of a trademark that is likely to confuse consumers about the source of goods or services, but also prevents the misappropriation of trade secrets, and prevents false or misleading advertising regarding product attributes or performance.

Believe it or not, all of the legal prohibitions within the umbrella of unfair competition law are intended to foster competition. Who wants to invest in a business when someone can come along and rip you off or lie about your product? Who wants to buy something when you don't know what you are getting?

So what happens when a business uses the unfair competition laws, not to protect or promote fair competition, but rather to stifle it? This conduct falls at the other end of the "free and fair competition" spectrum and is known as anticompetitive conduct and is governed by antitrust law.

This week, the company that offers the fruit arrangement alternative to flowers under the dubious trademark "Edible Arrangements" filed a motion in federal court asking the Judge to dismiss objections by the equally dubiously named "1-800-Flowers.com" company that its trademark infringement claims violated the antitrust laws of the United States.

Edible Arrangements sued 1-800-flowers.com last year alleging that the company was infringing its trademarks through use of terns including "edible" and "bouquet." 1-800-flowers.com, pulled the red card, citing the Noerr-Penninton doctrine to argue that Edible was not only misguided in its claims of infringement, but that Edible crossed the line into its own unlawful conduct...