The Texas Lottery Commission (TLC) is suing a Houston-area distiller for trademark infringement. The commission owns a trademark on the phrase “Texas Two Step.” The distiller wants to market a handmade vodka called “Texas Two Step.” But that is where the similarities end.
Trademarks do not prohibit others from using a phrase. They do prohibit others from using a trademarked phrase in a way that would confuse consumers. The commission alleges that its reputation may be tarnished because consumers may think that the TLC is promoting alcoholic beverages. In other words, the TLC thinks that some consumers are stupid.
Interestingly, the TLC hasn’t opposed a popcorn company, a lawn care business, and a roofing business from using the “Texas Two Step” phrase. Nor has it opposed Texas A&M using the phrase for its fire ant killing system, or the Texas Department of Motor Vehicles use of the phrase for its vehicle inspection and registration process. Why hasn’t the TLC complained that these uses of the phrase will confuse consumers? Apparently, the TLC thinks that the consumers of vodka are stupid, but the consumers of popcorn, lawn care services, roofing services, and fire ant products aren’t.
Wikipedia states that trademark infringement occurs when one party
uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers.
Popcorn companies, lawn care services, and roofing companies are not offering a product or service that is identical or similar to the products offered by TLC. Nor is a vodka similar to the lottery. Popcorn companies, lawn care services, roofing companies, and distillers are not threatening whatever values the TLC has created.
Trademarks, like patents and copyrights, are an important application of property rights. However, they are not a club to be used against those who do not threaten the values one has produced. Self-defense is appropriate and moral. Unprovoked attacks are not.