Is That Trademark Misuse, Hon?

Down in Baltimore (or depending on your locale, up in Baltimore, over in Baltimore, or out in Baltimore), there is a tempest brewing over the word “Hon” — as in, “Can I warm that up for you, hon?”

The term has long been a part of Baltimore’s collective culture, so much so that the city is home to an annual “Honfest,” complete with beehive hairdos, feather boas, and cat’s-eye sunglasses.  It isn’t difficult to see where John Waters, Baltimore native, got his inspiration.

But the proprietor of Honfest, a woman named Denise Whiting, has registered a broad variety of trademarks on “Hon” and “Hon” variations, in connection via a variety of products and services, including retail gift shops, paper goods, restaurant services.  The registrations are owned by Cafe Hon, Inc., which apparently is Denise Whiting’s business.

Now, she’s in hot water over a list of dos and don’ts — mostly don’ts — distributed to vendors who will be selling products at the upcoming Honfest. (The link goes to a Baltimore Sun story from June 3 titled “Festival fliers reignite ‘hon’ controversy”.)

The source of the consternation is principally this:  Honfest insists that vendors not sell a variety of things.  Political items.  Religious items.  And cat’s-eye sunglasses.

I assume that that cat’s eye sunglasses are for sale at the various “Hon” enterprises, including Hontown, which appears to be adjacent to Cafe Hon.  There is no evidence, from what I can see, that Cafe Hon owns a mark on cat’s eye sunglasses with no “Hon” mark affixed to them.

So the issue is this, I think:  On the one hand, Honfest, a private enterprise, has received a permit (or permits) from relevant public authorities to hold a street fair.  Honfest appears to be using a combination of that permit and its federal trademark registrations to prevent vendors at the street fair from selling merchandise that is (i) generic but (ii) competitive with Honfest merchandise.  On the other hand, vendors who don’t like the restrictions don’t have to participate in Honfest.  I assume that the list of banned items is part of some kind of agreement, and vendors can reject the agreement and stay home.

It’s possible that I haven’t picked up all of the relevant facts.  But something is amiss in Bawlmer; this isn’t the first time that the owner of the Hon marks has been accused of bullying.  What’s the right doctrinal vehicle here?  Trademark misuse  comes to mind, but only because there is a fairness problem lurking pretty close to the surface.   Suppose a Honfest vendor sells the wrong type of sunglasses.  Honfest sues (or ejects the vendor, leading to a hypothetical claim by the vendor against Honfest, to which Honfest offers a counterclaim).  Does Honfest rest on the agreement?  Is the agreement authorized, in all of its scope, by the permit granted by the relevant public authority?  Is any of it preempted by federal law?  Does Honfest pursue a claim for trademark infringement?  On what ground?

Updated:  I’ve now seen what appears to be a copy of the flyer distributed by Honfest, and it is just that – a flyer.  The relevant text reads:

“Prohibited items include but are not limited to the following: … Counterfeit designer clothing or handbags, weapons of any kind, cat’s eye sunglasses, or any product bearing the HONfest name or logo. … Prohibited items also include any and all items or products that that may infringe on the Federally registered trademarked logo and names of HONfest, Café HON, Baltimore’s Best HON, HONtown or HON. … HONfest, LLC reserves the right to remove any exhibitor or inventory that has not complied.”

Image source: Cat’s eye sunglasses at the Honfest website.