'Survivor' Term Comes Under Fire

[Bill Pritchard]

Did anyone read the editorial in the newest issue of “Hemmings Muscle Machines” magazine? It seems the ‘Bloomington Gold’ Corvette folks (aka Mecum Auctions) are whining about other peoples use of the term ‘Survivor’ as it applies to collector automobiles. In short, Hemmings received a threatening letter from Mecum’s law firm and was forced to go thru all their sale ads post haste and exclude the word ‘Survivor’ from any of them. While I agree that ‘Survivor’ is a much abused and overused term, Mecum is taking it too far the other way. I suppose collector car websites such as this one can be expecting notification in the near future

[firstgenaddict]

The term "Survivor" has become a generic term for an unrestored / original car. It seems as though they have waited a little too long to defend their brand. If it was trademarked they would have had to rigorously defend their brand/trademark or else they lose it. Styrofoam was a brand/trademark for the generic expanded polystyrene. It was lost because the company did not defend it when others used in the generic.

[Bill Pritchard]

[ QUOTE ]
It seems as though they have waited a little too long to defend their brand. If it was trademarked they would have had to rigorously defend their brand/trademark or else they lose it.

[/ QUOTE ]

Better read the editorial. Bloomington Gold registered the term "Survivor" with the United States Patent Office in 1990. Their law firm is taking the position that anyone using this term on any collector car is infringing on BG's property

[Mr70]

Who's next,CBS & Mark Burnett?

[70 copo]

Yipes, I guess no old cars on the TV show "Survivor" Right


Next someone will get a patent on the words "restored supercar".....

Suing is one thing winning is something else. I am sure that they have a claim to the exact term "Survivor" as applied to a Corvette via the BG definition of a "survivor" as patiented.

Safe to say that currently they are in dissagreement thus here comes the lawyers correct? It will be neat to see this one play out.

Example: Say I place an ad for my car for sale as a
"survivor" of long storage, untouched, all original with low miles and all original parts. Does BG have a leg to stand on here? To me it depends "how" the term "survivor" is used. Ill bet that a judge in court will not understand this and will throw the case out, or rule that they do own the term but only as applied to Corvettes sold for a premium as due to "Survivor certification" as patented and awarded by BG.

This would be consistant with any reasonable misrepresentation of a trademark by anyone for monitary gain -ie use of the "Gold Spinner" certification/name to falsely sell a car for more money. No I did not read the story, but trying to trademark a word in the english language and then to try to restrict its use beyond a simple trademark infringement looks like a clear violation of the 1st Ammendment (freedom of speech) of these great United States. Give me a ring side seat!!

[toner]

Call them "a survived" car from now on.

[Charley Lillard]

In defense of Dana Mecum. I have met him and he seems like a nice guy to me. It might be something as simple as competing with NCRS. Bloomington has their survivor class and they have been doing it so long it has brought meaning to the term and if I owned the company I might trademark the term also and apparently the patent office agreed with them. Going after Hemmings seems kinda silly but I'm sure there is more to this story. Does Mecum own Bloomington or just do the auctions as part of it ?

[Pantera]

I have been setting here reading all the posts so far about this and I am furious.

I was not aware that their copyrite of the term "Bloomington Gold Survivor" entitled them to the exclusive right to the generic term "Survivor" when applied to any collector car.
That term has been used freely in the hobby almost as long as muscle cars have been collected.

A "Survivor Car" should be a phrase that can be used by anyone that wants to use it. Screw Bloomington if they sue someone over the use of this I hope everybody in the "Collector car hobby" all sign up to testify against them. That term was coined long ago. It was first used more by those in the NCRS and Bloomington was just one stop on their show circut. I will be one that will be the first to sign up against them.

I also hope that everyone in the hobby will boycott the bastards if they think they own the entire english language.
I for one will boycott them when the day that my my Motion vettes and especially my "day 2 Survior" 60,000 mi '65 Vette is finally restored and I start to show it. If they want to control the hobby like that I predict that it could backfire on them.

I think they are oversteping themselves. Since 1990 they have not vigorsly defended their copyrite of the term so they should be limited to only the exclusive use of "Bloomington Survivor" or "Bloomington Gold Survivor" period. They are oversteping their right to the term "Surivor car" and they could be in danger of loosing it.


In fact I predict that they would loose in a court battle over the use of the term. I hate to see the auction company backing down as that just gives Mechams lawyers encouragment to go after everyone in the industry. I hope that this forum will not be the ones that have to suffer because of this.

Dammm I am really pissed.... It is a good thing that I don't have a dog or I might take out my anger over this on him.

(climing down off soapbox)

Thanks all,
Pantera

Perhaps this forum should copyrite the term "day 2 survivor" before they try to stop us from using it too.

[firstgenaddict]

Here is what the LAW says
Seems like it just may apply here.

§14 (15 U.S.C. §1064). Cancellation
(3) At any time if the registered mark becomes the generic name for the goods or services, or a portion thereof, for which it is registered, or is functional, or has been abandoned, or its registration was obtained fraudulently or contrary to the provisions of section 4 or of subsection (a), (b), or (c) of section 2 for a registration under this Act, or contrary to similar prohibitory provisions of such said prior Acts for a registration under such Acts, or if the registered mark is being used by, or with the permission of, the registrant so as to misrepresent the source of the goods or services on or in connection with which the mark is used. If the registered mark becomes the generic name for less than all of the goods or services for which it is registered, a petition to cancel the registration for only those goods or services may be filed. A registered mark shall not be deemed to be the generic name of goods or services solely because such mark is also used as a name of or to identify a unique product or service. The primary significance of the registered mark to the relevant public rather than purchaser motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used.
(5) At any time in the case of a certification mark on the ground that the registrant (A) does not control, or is not able legitimately to exercise control over, the use of such mark, or (B) engages in the production or marketing of any goods or services to which the certification mark is applied, or (C) permits the use of the certification mark for purposes other than to certify, or (D) discriminately refuses to certify or to continue to certify the goods or services of any person who maintains the standards or conditions which such mark certifies:

Abandonment of mark. A mark shall be deemed to be “abandoned” if either of the following occurs:
(1) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.
(2) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark. Purchaser motivation shall not be a test for determining abandonment under this paragraph.

[70 copo]