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. Â 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. Â 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: Â Honfest insists that vendors not sell a variety of things. Â Political items. Â Religious items. Â 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. Â 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: Â On the one hand, Honfest, a private enterprise, has received a permit (or permits) from relevant public authorities to hold a street fair. Â 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. Â On the other hand, vendors who don’t like the restrictions don’t have to participate in Honfest. Â 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. Â But something is amiss in Bawlmer; this isn’t the first time that the owner of the Hon marks has been accused of bullying. Â What’s the right doctrinal vehicle here? Â Trademark misuse Â comes to mind, but only because there is a fairness problem lurking pretty close to the surface. Â Suppose a Honfest vendor sells the wrong type of sunglasses. Â Honfest sues (or ejects the vendor, leading to a hypothetical claim by the vendor against Honfest, to which Honfest offers a counterclaim). Â Does Honfest rest on the agreement? Â Is the agreement authorized, in all of its scope, by the permit granted by the relevant public authority? Â Is any of it preempted by federal law? Â Does Honfest pursue a claim for trademark infringement? Â On what ground?
Updated: Â I’ve now seen what appears to be a copy of the flyer distributed by Honfest, and it is just that – a flyer. Â The relevant text reads:
â€œProhibited items include but are not limited to the following: â€¦ Counterfeit designer clothing or handbags, weapons of any kind, catâ€™s eye sunglasses, or any product bearing the HONfest name or logo. â€¦ Prohibited items also include any and all items or products that that may infringe on the Federally registered trademarked logo and names of HONfest, CafÃ© HON, Baltimoreâ€™s Best HON, HONtown or HON. â€¦ HONfest, LLC reserves the right to remove any exhibitor or inventory that has not complied.â€
Image source: Cat’s eye sunglasses at the Honfest website.