In December, rock band Guns N’ Roses sued Jersey Village Florist, a Texas company that sells firearms and flowers under the name TEXAS GUNS AND ROSES. About a year ago, GNR also petitioned to cancel Jersey Village’s trademark registration for TEXAS GUNS AND ROSES.com (stylized), which is still pending.
To paraphrase “November Rain,” lawsuits always coming, lawsuits always going, no one is really sure who’s settling today, walking away. In other words, the suit is still in an early stage and it’s not clear how far it will go. But if the parties don’t end up settling, one likely question is whether GNR can stop Jersey Village from using the TEXAS GUNS AND ROSES moniker if it sells, well, guns and roses.
While GNR may have an appetite for destruction, trademark law is a little more nuanced.
The claims in the complaint, filed in the U.S. District Court for the Central District of California, include trademark infringement and dilution, among others.
The law of trademark infringement uses a variety of factors to determine whether there is a likelihood of confusion. For example, the more similar the competing marks are, the stronger the case for infringement may be.
However, the factors also consider the similarity of the goods and services. GNR’s goods and services – which include recorded music, entertainment services, and clothing – may not be seen as similar to Jersey Village’s goods and services. Finally, although Jersey Village normally would be allowed to accurately describe the goods it sells, the court also will consider whether it intended to deceive the public by adopting the TEXAS GUNS AND ROSES mark.
The dilution claim is a bit different. Under the law of dilution, the owner of a famous mark – as GNR claims its GUNS N’ ROSES mark is – has somewhat greater leeway. Dilution provides a remedy against weakening the distinctive quality of the famous mark, whether or not the goods and services are similar.
At the moment, GNR has only given Jersey Village a welcome to the jungle…err, we mean courtroom. Will Jersey Village pray for the thunder and the rain to quietly pass it by?