Duck Dynasty, the popular A&E television program, is big on camouflage. But the Dynasty crew may have overstepped its camo bounds when it proclaimed that “My Favorite Color is Camo.” This proclamation and use of the phrase on branded merchandise has recently led to a lawsuit. The Duck group is facing a trademark infringement challenge from a Florida company claiming Dynasty’s use of the phrase “My Favorite Color is Camo” infringes on its trademark registration.
“My Favorite Color is Camo” was first used on the show by Uncle Si Robertson and then subsequently printed on a Duck Dynasty line of clothing. Unfortunately for Duck Dynasty however, Hajn LLC, received a trademark registration on the phrase in 2011 in the class covering among other things, athletic apparel. In the suit, Hajn’s trademark attorneys, stated they sent Duck Dynasty cease-and-desist letters, but that they went unheeded. Now the LLC is escalating things by filing suit in federal court to enforce its trademark rights.
Hajn originally filed a trademark application on the phrase in 2010. The company filed an intent-to-use trademark application. This means that at the time of the initial trademark application the company had not yet used the trademark in commerce, but was planning to do so. Its trademark registration indicates that the group began using the mark in commerce near the beginning of 2011. Upon showing use in commerce, the Florida group received a full trademark registration on the phrase. Having a trademark registration should give Hajn a presumption that it has the exclusive right to use the trademark in commerce in connection with the goods described in the trademark registration. This also means that Hajn may prevent others from using any confusingly marks similar for the same or related goods. This is where Duck Dynasty ran into trouble.
Hajn claims that Duck Dynasty’s commercial use of the phrase infringes its trademark registration, causes consumer confusion, and in addition, is causing reverse confusion. Reverse confusion is where consumers are likely to be confused and mistakenly believe that the initial, often smaller user of the mark is playing off the goodwill of the second, larger user of the mark. Because Duck Dynasty is so popular, consumers believe that the phrase originated with Duck Dynasty and Hajn’s use is a copy. Hajn’s lawsuit demands that Duck Dynasty stop using the phrase and pay Hajn for damages. The suit claims that the branded apparel has been sold in major retailers like Wal-Mart and Target and has rung up $400 million in revenue. This could amount to a hefty damages bill for Duck Dynasty.