Who Owns a Dead Brand?

May 31, 2011

1958 Rambler Ambassador

I love “orphan” cars — the marques that have gone out of business. Most of them are barely remembered by Baby Boomers, much less anyone younger. Packard, Hudson, Nash, Studebaker, Willys – these and other automakers often were stylistically and technically more advanced than Detroit’s Big Three, but they just couldn’t match the economies of scale that Ford, Chrysler and General Motors enjoyed.

I saw a number of orphan vehicles at the annual classic car show at Lake Harriet over the Memorial Day weekend, and it got me thinking: Could someone resurrect these old brands and use them in a modern marketing program?

Looks like I’m not the first one to have that thought. In researching the issue, I discovered an interesting recent case from the Trademark Trial and Appeal Board. It seems that an entrepreneur had been floating some design concepts for a custom-built car, to be called the Rambler. The last Rambler was produced in 1969 by American Motors, later absorbed by Chrysler.

Chrysler objected to the use of its predecessor brand mark. And, in a decision somewhat mystifying to a layman, the TTAB agreed – even though it smacked down Chrysler on nearly every aspect of the case.

The board found that Chrysler had abandoned the Rambler mark for autos; had no plans to ever build another car by that name; didn’t sell parts or services using the name; and had not established rights in the mark relating to some replica models marketed by the Franklin Mint and others.

1951 Studebaker "bullet-nose"

All Chrysler could show was that a third-party licensing agency had produced and marketed a few tchotchkes using the Rambler name: key rings, calendars, decals and assorted other items. But those tchotchkes saved Chrysler’s bacon.

The TTAB held that those items created a likelihood of confusion — that the buyer of a newly reborn Rambler automobile would ascribe a single source to the products.

Thus, even though the board specifically found that Chrysler had abandoned the Rambler mark for automobiles, its preservation of the mark in the form of third-party key rings was enough to prevent anyone else from using the mark in the arena in which Chrysler had abandoned it.

The likelihood of anyone successfully building and selling a custom car is pretty small, no matter whether they call it a Rambler or anything else. So I don’t see this decision as a horrible miscarriage of justice. Still, it does seem a shame that these old brand marks can be retained by companies that have let decades go by with no evidence that they give a damn about them.

The people who care most about Ramblers and Packards and Studebakers are the ones who have invested their own time, money and sweat in keeping alive the memories – and the physical manifestations – of these once-great marques.

Who’s got a better moral right to these brand marks: the people who killed them or the people who are keeping them alive?

This post is being published concurrently on Winthrop & Weinstine’s Duets Blog, a blog devoted to the intersection of marketing and the law.