The differences between a creek and a river - or between the initials BDP and BPD - are subtle.
Just how subtle could go a long way to determining whether two Jacksonville businesses get to keep their names or logos - including NASCAR driver Dale Earnhardt Jr.'s Whisky River at St. Johns Town Center.
Two trademark infringement complaints filed recently in Jacksonville have asked judges to determine whether Whisky River and BPD International freight company in Mandarin can continue to use those names. The complaints say the names, and Whisky River's logo are too similar to trademarks owned by Whiskey Creek restaurant chain and BDP International freight and logistics company in Philadelphia.
Such complaints are rare in Northeast Florida. Only nine trademark infringement cases were filed in the Jacksonville division of U.S. District Court in all of 2009.
But according to the companies that filed them, the price of protecting their names and reputations is incalculable.
In the Whiskey Creek case, lawyers for the Nebraska-based chain are fighting the battle on two fronts: in court and at the U.S. Patent and Trademark Office. The 15-year-old chain has 15 restaurants, including one Florida location in Port Charlotte.
The complaint says Whisky River's name, menu and circle logo are so similar to Whiskey Creek's that they will confuse consumers. That could damage Whiskey Creek's reputation, the complaint says.
"In particular, the public associates the Whiskey Creek mark with restaurants that have a wholesome, family-oriented character where children are welcome," the complaint says. "The character of the Whisky River restaurants and nightclubs are more adult-themed and sexually oriented."
A spokesman for Whisky River's parent company in North Carolina said Friday that's exactly what sets the two establishments apart. He said there is no conflict.
"They're kind of a steak house, and we're the furthest thing from a steak house," said J.R. Rhodes, spokesman for Earnhardt's Hammerhead Entertainment. "It's not even close."
Hammerhead has two Whisky River locations in Jacksonville and Charlotte, N.C. It registered with the trademark office in 2008, but Whiskey Creek's lawyers say that registration was for bar and nightclub services, not food or restaurant. Whiskey Creek, which registered its trademarks in 1996, is appealing Whisky River's registration at the trademark office.
A decision by that office's appeals board isn't binding on the courts but can be persuasive, said John McDermott, who teaches intellectual property law at Loyola Law School in Los Angeles.
In Jacksonville, U.S. District Judge Marcia Morales Howard struck Whiskey Creek's civil complaint last week as being repetitive in violation of court rules. She gave the company's lawyers in St. Louis until June 24 to re-file or risk dismissal of the case.
Whiskey Creek attorney Keith Grady said they will re-file to comply with Howard's order.
In the other trademark case filed last week, Philadelphia-based BDP International accused BPD International of creating the "confusingly similar" name to trade on BDP's reputation in the global logistics industry. Both companies handle freight in Florida, the complaint says.
"Such use is likely to create confusion in the marketplace," BDP attorney Nathan Cook wrote to BPD's president Bahtiyar Yurdakul in April. The letter asked BPD to agree in writing not to use the name, but the request was ignored.
A man answering the phone at BPD on Friday referred a reporter to the company's lawyer, who didn't return a phone call.
BDP has been around since 1966 and registered its trademark in 1972. It has an office in Miami.
"The industry recognizes the name BDP as a symbol of excellent service and progressive thinking in our field," the company said Friday in a statement released through its lawyers' office. "The name and mark ... carry invaluable goodwill. That goodwill must, if necessary, be protected. We hope that we can resolve this matter amicably."
BPD is a relatively new company and there is no indication on the trademark office's website that it has attempted to register the name.
Trademark rights in the United States aren't created by registration but by priority - who was first to use the mark on similar products or services - McDermott said.
In both Jacksonville cases, priority is well-established, so the issues left to decide will be similarity of the names, marks and services.
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