A while back, I talked about the trademark lawsuit between Brewskee-Ball, the bar-based Skee-Ball league, and Skee-Ball, Inc., the maker of Skee-Ball machines.
Those of you hoping to get in on the fun can breathe easy: the parties informed the District Court and the Patent and Trademark Office that they have reached a confidential settlement. While the terms of the agreement are not public, apparently the Brewskee-Ball league will continue to operate using the “Brewskee Ball” name and the league will use Skee-Ball, Inc. machines for league play.
This looks like the right result to this outsider. But did they really have to go through years of litigation to get there? Probably not. As I suggested previously, all of this trouble could have been avoided if the parties had followed some basic best practices when creating the league. But they didn’t, and so now I get to write another blog post about boardwalk games and beer – and you get two more lessons to take away from the settlement of the case.
Brand Protection Shouldn’t Always Mean a Lawsuit
First, litigation is not your first option, nor is it usually the best option, particularly here, where there was no real harm being done to the trademark owner (unlike say, knock-off goods that can cause reputational harm). Arguably the Skee-Ball league was helping Skee-Ball, Inc.’s business, so litigation should not have been the first option. Instead, Skee-Ball, Inc. should have simply sought a business solution by identifying its issues involving the league’s use of its trademark and figuring out how they could be addressed in a way that would satisfy both parties.
In fact, it is always a good exercise to speak with IP counsel to identify both legal and business concerns that are important to you in seeking to protect your mark. That will help you identify the range of business-solution options you might propose. While it sometimes helps move the process along to threaten (and be willing) to sue, often it is far better to use that kind of talk only as a last resort. Your tone in the initial contact can make all the difference.
Don’t Get Emotional, It Doesn’t Help
Second, don’t be so emotional about your mark that you can’t get to the obvious business solution. Here, at least to observers, it appeared that both sides were a little too emotional about the situation, with Skee-Ball, Inc. focused on its long history of making the machines and with Brewskee-Ball focused on the fact that it thought it had a handshake deal. (Read my original post for more background on this issue.) Commentators could not understand why the parties did not automatically act on what was clearly a mutually beneficial deal.
When the fair and reasonable solution (in this case, a licensing or approved use agreement) is plain and simple to outsiders, as it was here, you are clearly too emotional. One way to avoid getting caught up in the emotion of it all is to discuss the issues with impartial outside counsel who understands your business and who can both understand and see past the emotions at play. Tell counsel that you need an honest assessment of potential business solutions, and then listen! Divorcing the emotional concerns from the business concerns is key to being able to see alternative business solutions clearly.
And when you reach a good business solution, take your outside counsel and your team out for a few pitchers of beer and a game or two of Brewskee-Ball. You’ll deserve it.