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A small business in Illinois filed a trademark application last summer for its new business idea – “Call of Doodee,” focused on dog waste removal services. Video game players and their parents and/or significant others will recognize that the business’s name is an homage to the very popular “Call of Duty” first-person shooter video game franchise. Although the business owner filed an express abandonment of the trademark application at the end of October, the application was already scheduled to be published on Halloween. In response to this publication, the maker of Call of Duty, Activision Publishing, Inc., filed an Extension of Time to Oppose the Registration, presumably to determine if the waste removal business intends to move forward with the name, potentially sullying the reputation of a game that, in my opinion, already has a questionable reputation of its own.
Some of you may be thinking, “I know the difference between a business that makes my favorite super violent video game and a person I pay to clean up the backyard.” That is an excellent point, for which you should pat yourself on the back. Trademark law mostly concerns itself with consumer confusion, so if the average consumer would recognize Call of DooDee, as a pun and likely a service relating to dog feces, then the Trademark Office would be less concerned about the connection to the popular video game. Activision may rely on another tenet of trademark law, called dilution, which protects very famous marks from having their unique marks diluted in the marketplace by another less famous mark. However, the current DooDee controversy would likely be governed by case law from the oh-so-appropriately titled case, Louis Vuitton v. Haute Diggity Dog (507 F.3d 252 (4th Cir. 2007)), which held that “Chewy Vuiton” parody-purse dog toys were not impairing the distinctiveness of, and therefore not diluting, Louis Vuitton’s well-known trademarks.
While we can’t know yet how this matter will be resolved, let’s give a hat tip to “Call of Doodee” waste removal services in Channahon, IL, for a great business name and hearty applause to me for abstaining from dog-punning throughout. This is a good lesson for business-owners. While there was real oppawtunity here for a blossoming business, every brand-owner must furst consider any risks before selecting a mark, or its efforts may be curtailed and it could be hounded.
In addition to her clever puns, Attorney Nicole J. O’Hara guides individuals and businesses through the trademark application process. She also provides counsel in other areas of intellectual property law including patents and copyrights.