This week’s blog post has some local flavor to it (alcohol and tobacco to be exact) thanks to a trademark dispute between two competing liquor stores here in the St. Louis area. Dotted across The Lou is a chain of twelve discount liquor and cigarette shops called DIRT CHEAP. Dirt Cheap is probably best known throughout St. Louis for its wacky and somewhat ridiculous television commercials featuring a person dressed in a chicken costume who goes around saying the phrase “Cheap Cheap, Fun Fun!” This slogan also appears on Dirt Cheap’s website, a screenshot of which appears below:
A quick search of the Trademark Office’s records reveals that Dirt Cheap has been using the DIRT CHEAP mark since 1993 and owns federal registrations for DIRT CHEAP (Reg. No. 2613728), the racy (and disturbing) chicken logo displayed in the banner of its website (Reg. No. 3047335), and FUN FUN CHEAP CHEAP (Reg. No. 2878533), all of which are for distributorship and/or retail store services featuring beer, liquor, and cigarettes. Although it’s not particularly pertinent to the story, the FUN FUN CHEAP CHEAP registration should probably be amended since all of the television commercials and printed advertisements now use CHEAP CHEAP FUN FUN instead. In fact, if you take a look at the specimen of use that Dirt Cheap submitted to the Trademark Office when it filed its Declaration of Continued Use about six months ago (shown below), you will see that it actually displays the mark as CHEAP CHEAP FUN FUN.
Clearly, the Trademark Office should have refused to accept the Declaration since the mark as displayed on the specimen does not match the mark as registered. Perhaps the person in charge of examining the Declaration was drunk on Dirt Cheap’s “30 Dime Wine.”
Well, apparently another St. Louis based company by the name of SUJVL, Inc. wanted to innocently inform its customers of how incredibly inexpensive its alcohol and cigarettes were and decided to adopt the trademark CHEAP CHEAP as the name for its liquor store. Unfortunately, I was unable to find a website for Cheap Cheap, but being the investigative trademark attorney that I am, I took a short drive over to one of Cheap Cheap’s two locations to check it out. Here is a picture of the front entrance of the store:
Anyway, to the surprise of not a single trademark attorney, Dirt Cheap recently filed a trademark infringement lawsuit against Cheap Cheap in the United States District Court for the Eastern District of Missouri (Case No. 4:10-cv-01198), alleging that the CHEAP CHEAP trademark is likely to cause confusion with Dirt Cheap’s registered DIRT CHEAP and FUN FUN CHEAP CHEAP trademarks.
Wow, if this isn’t classic trademark infringement/unfair competition, I don’t know what it. DIRT CHEAP and CHEAP CHEAP are nearly identical in appearance and sound, they both use the same stylized font, they both have a similar meaning and commercial impression, and both are used in connection with retail liquor stores. In addition, CHEAP CHEAP undoubtedly brings to the minds of consumers the “Cheap Cheap Fun Fun” slogan exclaimed by the chicken in Dirt Cheap’s TV commercials and as displayed on its website and printed advertisements. Seriously, the only thing Cheap Cheap didn’t rip off was the stupid chicken mascot (there must be a God after all).
I rarely say this about defendants in trademark infringement lawsuits, but I think I can honestly say that Cheap Cheap doesn’t stand a chance of winning. It should just start phasing out the use of CHEAP CHEAP now and save itself the considerable time and expense of defending this lawsuit. It certainly isn’t going to be cheap (or cheap cheap or dirt cheap) to change its name, but it’s certainly less pricey than spending tens of thousands of dollars on legal fees, losing, and then having to make the change anyway. Good thing the owners of Cheap Cheap likely have enough booze in their inventory to make dealing with this situation a little more palatable.