Battle of the Honest Folks: Celebrity v Toddler

2013/08/04 by admin in Business with 0 Comments

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The heat of Summer is causing emotions to boil in connection to
a fight brewing on social media, triggered by a cease and desist letter
and a trade mark opposition.
The question at the heart of the dispute? Which of the dueling brands is truly
“honest”.  [Katpat Jenny Glatzer!]

The Honest Company (“Honest Co.”)  is a consumer products brand that sells
non-toxic, eco-friendly baby products, bath and body products, vitamins and
related goods marketed towards parents who are concerned for the health and safety of their children. Honest Co. was co-founded, and is co-owned, by Hollywood starlet Jessica Alba. Ms Alba has also published a book called The Honest Life. The company and
book are described on Honest Co.’s website as follows:
“As a new mom, Jessica Alba wanted
to create the safest, healthiest environment for her family. But she was
frustrated by the lack of trustworthy information on how to live healthier and
cleaner—delivered in a way that a busy mom could act on without going to
extremes. In 2012, with serial entrepreneur Brian Lee, seasoned consumer
internet executive Sean Kane, and environmental advocate Christopher Gavigan,
she launched The Honest Company, a brand where parents can find reliable
information and products that are safe, stylish, and affordable. The Honest
Life shares the insights and strategies she gathered along the way.”

Contrast this with The Honest Toddler (“Honest Toddler”), a popular, humorous Twitter feed
written by Canadian mom Bunmi Laditan in the voice of her two-year old
toddler.  Laditan also published a
parenting book of the same name,
and reportedly sold the television rights to Sex and the City producer Darren Star.

Initially, Honest Co. and Honest Toddler co-existed
amicably. Honest Toddler even participated in an interview on Honest Co.’s
website. However, once Honest Toddler filed a trade mark application with the
USPTO (in class 41 for “providing a
website featuring blogs and non-downloadable publications in the nature of
articles and columns in the fields of entertainment and parenting
Honest Co. requested that Honest Toddler withdraw its application and cease
all activities that infringe upon Honest Co.’s established trade marks. Honest Co. claims
it holds more than forty US trade mark registrations for the products mentioned above. It also has numerous other registrations
and “intent to use” applications, which give it priority rights for five years
for product categories that are in development, including baby and children’s
apparel, youth home furniture and décor and baby care accessories and toys. In addition, Honest
Co. holds two trade marks for a sub-brand name called Honestbaby. The Honestbaby trade marks are registered in the
following categories:
Class 45 – “Information in the
field of parenting concerning intrafamily relationships; Providing a web site
featuring information about baby names to assist web users in learning about
and in choosing names for babies; Providing advice and information on
appropriate gifts for children; Providing fashion information; Providing
information in the field of child safety.”
Class 41 – “Information in the
field of parenting concerning education of children; Information in the field
of parenting concerning entertainment of children; Information on education;
Providing an on-line computer database featuring information regarding exercise
and fitness before and after pregnancy; News analysis and features
distribution; News reporting services.”

When Honest Toddler refused to withdraw its trade mark
application, Honest Co. filed an opposition to the application with the USPTO. 

So which brand is entitled to use the Honest moniker? Maybe
both. Honest Co. launched its products in 2012, prior to the creation of Honest Toddler. Since its launch, Honest Co.’s products have
received rave reviews and, bolstered by Ms Alba’s fame, have quickly gained popularity and a positive brand
recognition. Thus, to the extent that the two brands’ activities occur
in the same product or service trade mark categories, the Honest Co. has superior rights
on the basis of its prior use and its registered trade marks.

However, it is possible that Honest Toddler could survive
Honest Co.’s trade mark opposition because the word “Honest” as a trade mark is
rather weak – it is somewhat descriptive of the quality of the trade mark owner’s
offerings. In fact, other brands already use an Honest moniker without causing
consumer confusion: Honest Tea, Honest Chips, and The Honest Kitchen pet food are just a few examples. The challenge for Honest Toddler would be showing
that its activities are wholly distinct from, and not confusingly similar to,
Honest Co.’s, despite the fact that they share the same consumer base and both
combine the word “Honest” with a word related to children.  [As this Kat understands, an analysis under European and other foreign jurisdictions’ laws would not take into account how unique a mark is. In the US, a trade mark is entitled to increasing levels of protection depending on whether it is (in order from least protected to most protected) generic, descriptive, suggestive, or arbitrary/fanciful. Would any readers care to comment on the analysis as it would be judged under the law of their home jurisdiction?]

Honest Co. may have been willing to co-exist with Honest
Toddler if Honest Toddler hadn’t sought a US trade mark registration. But Honest
Co., like any brand, couldn’t ignore a potentially confusing, competing brand seeking
trade mark registration with the USPTO. For its part, Honest Toddler is
unwilling to withdraw its trade mark application, and says it will fight the
opposition. As a result, co-existence discussions between the brands have
apparently broken down.

In order to inform their consumer bases of the continuing legal challenges, each party has opted to engage its fan base online. Unfortunately,
the emotionally charged social media spat is obscuring the legal questions at
issue. Each brand’s Facebook pages, websites, blogs and Twitter feeds are
filled with catty, negative assertions and accusations, some of which have made
fans uncomfortable. Honest Toddler rallied its 250,000 Twitter followers to write
emails and messages deriding Honest Co. for “bullying” Honest Toddler. Many of Honest
Toddler’s fans level their criticism directly at Jessica Alba; their claims
assert that Ms Alba is personally attacking a funny, hard-working mom who
is trying to support her family. Supporters of Honest Co. point out that the
company is merely trying to protect its brand, its reputation, and its trade
marks, as well as protect its consumers from confusion.

The personal nature of the criticism leveled against Ms Alba
highlights the risk for celebrities who leverage their fame to build a consumer
products brand. In this Kat’s opinion, brand building is a double-edged sword
for celebrities. A successful brand can be highly rewarding for both the celebrity’s
wallet and reputation, but that success requires commitment; the celebrity
must maintain an active involvement and leadership in the brand in order to exhibit authenticity and gain consumer trust. On the other
hand, when the proverbial kitty litter hits the fan, disappointed and angry consumers
blame the celebrity as though she and the brand are one and the same. Though Ms Alba is
likely not directly involved in the legal action taken by Honest Co., she
is receiving the lion’s share of the negative press generated by Honest Toddler’s passionate consumer base.

Mike Mireles posted on IP Finance a thought-provoking blog on IP bullies in the world of charitable giving. He asks: “Do
we need more ‘bullies’ [to protect their marks] and less shame” and public
backlash as a result of a brand’s actions to protect its marks? It is a
question well worth asking in this context as well. Charitable
organizations have shied away from asserting their marks against infringers for
fear of public repercussions. Similarly, celebrity brands must consider the impact such
actions may have, not just on the brand’s image, but also on the celebrity’s
personal reputation.

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