In recent weeks there has been considerable wringing of hands and gnashing of teeth over Denise Whiting’s claim of exclusive ownership of commercial rights to the word “HON.”
UPDATE:The most cogent and authoritative overview of the HON issue is the commentary by attorney Jim Astrachan that originally appeared in the 12/20/10 Daily Record. Also very informative is the Midday with Dan Rodricks program from 1/5/11 featuring Astrachan and attorney Eliot Wagonheim.
Some have defamed Whiting and Cafe Hon in public forums, which is not only unproductive and off-topic, but only serves to undercut their own goals by bringing Whiting more publicity and sympathy. Those who smear her and call for protests and boycotts should read Benn Ray’s commentary in Baltimore Shank.
I have nothing against Cafe Hon or Whiting personally. I’ve eaten at Cafe Hon; the food is fine. I wish her well with Hontown and all her other endeavors. Whiting deserves credit for Honfest. Pulling off a festival year after year is no small feat. Without question, Whiting has contributed to the community and is an astute businessperson.
That’s all beside the point, just as the food at Cafe Hon is beside the point. Laws and rules apply the same to everybody, even if Whiting were a living saint.
Some people have said things to the effect of, “Whiting is a shrewd businessperson. The word was up for grabs, and she was first to stake a claim on it. She owns it, and now she can do what she wants. That’s the American way.”
This is not true.
Some people have said things like, “What difference does it make? Whiting does good for the community. It isn’t as though her trademark affects you in any way.”
This is also not true. Each one of us is affected. Whiting’s claim to exclusive commercial rights to “hon” unreasonably inhibits speech and restrains business.
Whiting’s claims to “hon” evidently extend beyond the word itself into the context in which it is used and the characterization of “the Baltimore hon.”
“I’m Hon Central,” Whiting said on a radio interview.
The Maryland Transit Administration “Charm Card” display ad, for which the agency consulted Whiting, does not represent any of her businesses and could not be confused with Cafe Hon or HonTown. Other than the use of the word, what else could Whiting approve but the image and characterization of the hon portrayed in the advertisement?
According to a Baltimore Sun article, Whiting charged a non-profit group $25 to throw a Hon-themed dance. She is accused of seeking a fee from the author of a book about hons, and also allegedly attempted to intimidate the owners of a Towson shop, Thanks, Hon!
Whiting’s statements in the press have done little to support her position and demonstrate a profound misunderstanding of what a trademark is, what it represents, how it is used, and what rights it bestows upon its owner.
“If somebody does something awful with the word, I might take issue with it,” she said during an appearance on WBAL Radio.
On a 98 Rock radio show, Whiting was asked whether the word “hon” printed on a t-shirt would violate her trademark.
“As long as you’re not mass-producing them…” she began to answer.
When pressed on whether she would object to a t-shirt that said, “Laugh, Hon” or “My Baltimore, Hon,” Whiting replied:
If somebody’s going to produce 5,000 of them for mass-production of them, I’m going to take a look at that. I’m going to be honest with you. But if somebody’s going to produce a small quantity of Hon something, I’m not going to…I can’t police that sort of thing.
….If somebody produces a t-shirt that is really derogatory, and really horrible, and presents the city in an awful way, would that be fair? If it’s something that’s derogatory that’s out there, I wouldn’t want Baltimore to be portrayed in the negative….
It’s interesting to note that Whiting says she would consider acting if the word were used in an awful way not because consumers might be confused about a product’s source, or it reflects adversely upon one of her entities, or it dilutes her brand name. She says she’d act in the public interest on behalf of Baltimore. It isn’t about her brand identity, it’s about Baltimore’s brand identity.
When Whiting seized “knock-off” merchandise from a store at BWI, the problem wasn’t that consumers might be unaware of their source or confused by imitation products of inferior quality. It simply cut into her sales.
One important point: Trademarks must always be defended. Otherwise the mark owner loses exclusive rights and the word or phrase falls into the public domain. A trademark owner cannot pick and choose whether to enforce proper usage.
Our everyday language includes many common words that were once trademarked; aspirin, cellophane, escalator, gummi, supermarket and zipper, for example. Companies hire legions of attorneys to make sure that trademarked terms remain under their exclusive control and don’t slip into the public domain, such as Xerox, Band-Aid, Kleenex and Kitty Litter.
Policing and enforcement are exactly what a trademark owner must do in order to preserve ownership and the value of the property.
At any time, Whiting could attempt enforcement against Welcome To Baltimore, Hon! or my friend William Patrick Tandy, who publishes the award-winning magazine Smile Hon, You’re in Baltimore! or any other entity with “hon” in the name or a sense of hon-ness – apparently especially so if she disapproves of the content and context.
Whiting might frown upon a t-shirt that says, “Fuck You, Hon,” which I personally think would be amusing and well within somebody’s First Amendment right to produce and sell.
The plan all along for WTBH included an online shop to sell t-shirts, mugs, stickers and other Baltimore-related ephemera. People often email me asking whether this merchandise is available. We sold a handful of t-shirts and coffee mugs that use the word in the context of our name to commemorate last winter’s Snowmageddon.
Tandy is working on a special hon-themed issue of SHYIB for which a diverse cross-section of contributors are composing their thoughts about the word and the controversy.
WTBH or SHYIB or anybody else could become a target if Baltimore is depicted in a light Whiting disfavors. She might object if I started a column called “Baltimore Hon,” “Honville” or, god forbid, just plain “Hon.”
Maybe she’ll discover that WTBH’s Twitter account is ABaltimoreHon and try to force me to give it up, or strong-arm BaltimoreHon to give up hers. Maybe she’ll take a dislike to the blog Bon Appetit Hon or those wacky lindyhoppers of Hi-De-Hon.
What if another restaurant wanted to serve a Honburger, or a car shop call itself HonMobile? Maybe somebody is working on a business plan for Baltimore Hon magazine, or considering a Hon Museum devoted to Baltimore’s working-class women.
The limits of Whiting’s claims aren’t clear – even to herself. She says the trademark only applies to certain classes of items: t-shirts, coffee mugs, stickers and the like. Yet it appears she believes that her ownership interests extend to display advertising on public transportation, dances thrown by non-profit groups, unrelated retail stores, and works of prose – none of which could be mistakenly linked to Cafe Hon, Honfest or Hontown.
Whiting says that her trademark is limited to HON within an oval. Yet she allegedly threatened the owners of Thanks, Hon! because the shop’s name supposedly infringed on her trademark.
Defending against a claim of trademark violation in court costs tens to hundreds of thousands of dollars. People on the receiving end of a cease-and-desist letter usually give in to the demands. Nobody else ever has to ever know about it. The threat of litigation – the mere existence of a threat – has a chilling effect on speech.
Whiting says that all she is doing is protecting her property and her investment.
”All my company was trying to do by trademarking the commercial use of ‘Hon’ was to protect it from merchandise knock-offs and poachers who wanted to capitalize on the commercial side of the concept enhancement work we had done,” Whiting said in a Dec. 16 letter to Baltimore Sun.
Whiting’s concerns about knock-offs and poachers is particularly eyebrow-raising since the caricature of the quintessential Whiting-style Baltimore hon – overweight, big hair, gaudy jewelry, garish make-up, bright and outrageous clothing – is clearly and obviously drawn from the films of John Waters.
As if the link isn’t obvious enough, in front of her restaurant is a gigantic pink flamingo – another Waters film reference.
The Whiting-style hon caricature is a product of Waters, Divine, art director Vince Peranio, costumers, make-up artists, designers and other assorted crew members. Even Waters and Peranio don’t take credit for creating the hon persona, since they were just reflecting real life.
Any claim to concept creation for “the hon” is as absurd as if there were a Wire-themed restaurant, with waiters dressed as corner boys in do-rags and its owner parading around in Omar’s iconic trenchcoat. And to drive home the point, with a huge wiretap on the front of the restaurant. And then to sponsor a WireFest, trademark the word “wire,” and stake a claim as Wire Central and the final arbiter of all things Wire-related.
Whiting’s entire schtick is based on John Waters’ films. It’s safe to say that if there were no Waters films, there probably would be no Cafe Hon, Honfest or Hontown. If anybody is knocking off, poaching and capitalizing on the creative work of others, it’s Whiting.
But whatever. If Whiting wants to build a career out of being derivative, that’s between her and the originality gods. I’m cool with it until somebody gets all grabby and says, “Mine, mine…all mine and nobody else’s.”
Whiting claims to own the trademark on an oval HON sticker. This oval HON sticker is a rip-off too.
The oval HON sticker is ripped off the OBX sticker created in 1994 by James Douglas, owner of Chilli Peppers restaurant in Kill Devil Hills, N.C.
An oval sticker or plate with capital letters is a symbol established by the United Nations as an international vehicle registration code, and used in Europe since 1968. A design for undistinguished capital letters inside an oval cannot be trademarked because it is already in the public domain as an international standard, just as you can’t trademark a stop sign.
Douglas actually coined the term “OBX” as a designation for the Outer Banks. He made it up, adding the X to the Outer Banks initials. Since he couldn’t trademark the oval design with capital letters, Douglas registered a trademark for “OBX” in 1998.
Whiting’s trademark claim boils down to that one word, its meaning, and how the word is used.
Hon is a term of endearment in common use for a long, long time. Since long before the existence of Cafe Hon and the registration of her trademark.
Hon is “a word that belongs to Baltimore,” Whiting said on WBAL Radio. “It doesn’t belong to Denise Whiting.”
We hear the word every day from cashiers, waitresses, family, co-workers, everybody. It’s part of Baltimore’s linguistic fabric.
Here’s a key question: What comes to mind when you hear “hon” – Cafe Hon? HonTown? Honfest? Or nothing at all, the word just blending into the everyday background?
For a common word or phrase to have a valid trademark, it must have a distinctive secondary meaning that is different from how the word is ordinarily used. And it must exclusively represent a business, product or service.
If I say “Apple,” you’re likely to think of computers or iPhones or iPods – electronics, and not the fruit. “Taco” and “bell” are two very common and generic words, but “Taco Bell” exclusively represents a chain of fast food restaurants and nothing else.
What does “HON” represent – Cafe Hon? HonTown? Honfest? Whiting?
The near-universal surprise to the news that Whiting trademarked “hon” speaks loudly to the absence of linkage between the word and Whiting or any her business interests. HON has zero brand identity.
For Whiting’s trademark to be valid, her “Hon” must mean something distinctly different from our hon – the Baltimore hon, the term of endearment hon – that refers exclusively to a business, product or service.
To put it another way: “Merit” is a common word that is a brand of cigarette. “Apple” is a brand of computer. “Chase” is a brand of bank. What product or service is HON is a brand of?
Whiting has never attempted to give any other meaning to hon. There’s no distinction between her hon and our hon. She promotes – and sells – the word in its common generic meaning as a term of endearment. The word is the product.
“I think it’s a word that belongs to Baltimore to be celebrated each and every day by each and every person,” she said on 98 Rock.
On WBAL Radio: “I beg everyone, please use the word. I love it up on the Parkway.”
Back to the OBX dude. In 1998, Douglas registered a trademark on a term he invented four years earlier. He wanted to promote the identity of the Outer Banks as a destination, and it worked extremely well. OBX stuck and has gained considerable brand recognition for the Outer Banks.
Douglas’ OBX stickers were very popular. He gave the stickers away for a couple of years, then formed a company – OBX Stock – to sell merchandise. By 2004, OBX Stock had more than $1 million in annual sales.
In 2003, Douglas discovered that another company, Bicast, was selling stickers that said “OB Xtreme.” OBX Stock sued for trademark infringement – and lost.
The court said:
Trademark law, at a general level, protects the goodwill represented by particular marks, enabling consumers readily to recognize products and their source and to prevent consumer confusion between products and between sources of products. The marks enable consumers to make informed, independent decisions about quality and other product characteristics. But the law also protects the “linguistic commons” by denying mark holders an exclusive interest in words that do not identify goodwill attached to products or product sources but rather are used for their common meaning or meanings not indicative of products and product sources.
Denise Whiting does not have a valid trademark on “hon.” She is a bully, trampling the linguistic commons.
The word is, and always has been, in the public domain. Hon is owned by nobody. Hon can be used by any person for any purpose – commercial or otherwise – so long it isn’t confused in the minds of consumers with Cafe Hon, or Hontown, or Honfest.
Whiting reminds me of nothing more than the Wizard of Oz, pushing levers to shoot terrifying flames into the air as she bellows, “I am the great and powerful Mistress of Hon!” while the citizenry quakes and flatters her business acumen.
She’s just a badly misinformed restaurateur.
Ultimately, what I think matters less than what she thinks. People like me, Tandy, shop owners, bloggers and others linked with “hon” are all now operating under a cloud of uncertainty. We are on notice that she claims the right to exert trademark ownership interest on the word if she disapproves of how Baltimore is depicted. She has shown a willingness to act in the past – to the point of seizing property.
Even if her trademark were valid, the ownership interests Whiting has expressed are far over-reaching and intrude on First Amendment rights.
It appears that the only way the issue will be resolved is in court. As far as I’m concerned, the weapon is loaded and a round has been chambered. It’s only a matter of pulling the trigger. Somebody has to put the bell on the cat’s collar, to pose a test case to resolve the issue once and for all.
It may as well be WTBH.
“I don’t expect a challenge,” she said.
Well hon, here it is.
Whiting may take legal action. She has said she’ll “sue the pants off” anybody who violates her trademark.
If she sues, it will cost her a lot of money and take a long time. She will be inviting scrutiny of her business interests and practices. She will further alienate Baltimoreans and erode the goodwill she has banked, particularly among creative and artistic vendors who might do business with her. She will tarnish herself, hon culture and Honfest.
And she will lose.