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Thursday, June 20, 2013
In last week’s episode of “As the Drink Freezes,” the barristers for a giant New England lemonade chain darkly hinted they might sue itty-bitty Deb’s Frozen Lemonade, which is operated by an octogenarian mother and her middle-aged daughter right here in little old traintown.
The problem was their logo — “Deb’s” — scrawled in green across a yellow lemon with some leaves. The heavy-handed Yankees warned Joyce and Debra Castelli that it infringed upon the registered trademarks of Rhode Island-based Del’s Lemonade.
So last week Joyce Castelli, 83, took a train to Providence to look the big-time lemonade lawyer straight in the eye. They had a meeting in his office Monday, which probably cost Del’s a bundle.
Meanwhile, back in Roanoke, some local legal heavyweights contacted daughter Debra Castelli. That’s why this week’s lemonade-opera episode is subtitled, “Is Woods Rogers Riding to the Rescue?”
Debra Castelli told me attorneys Joshua Long and Elizabeth Burgin Waller conference-called her at the lemonade stand Thursday after reading my column about Deb’s pucker-inducing plight. They raised the possibility that Woods Rogers could represent Deb’s in the dispute for free, Debra Castelli said. Neither lawyer returned my calls this week.
But you don’t mess with Roanoke’s oldest and biggest law firm on matters of intellectual property, or some other things, either. They have 13 lawyers who specialize in the legal gobbledegook of patent, trademark, copyright and licensing law. They work for software companies, the electronics and wireless industries and ship-loading equipment manufacturers, among others.
I would daresay Woods Rogers has probably never represented a single-stand, three-truck frozen lemonade operation, but hey.
If this winds up in court, Deb’s Lemonade probably has a great defense, said James Creekmore, who practices trademark and patent law in Blacksburg.
It was Creekmore’s firm that slayed Virginia Tech when the university raised a legal ruckus against Blackburg’s Hokie Real Estate, which is still using that name, by the way.
It just so happens that Creekmore is a fan of Deb’s Frozen Lemonade on Brambleton Avenue, which he used to patronize when he worked in Roanoke. I called him on Wednesday.
A crux of Deb’s defense would be that it’s been using its distinctive logo since 1977 here in the Roanoke Valley. And industry behemoth Del’s Lemonade, which is based in Cranston, R.I. and has spread out to 12 other states (not Virginia) didn’t even register its trademarks until 1984. Oops.
Under those circumstances, federal courts would look sourly upon a large lemonade outfit trying to bully a little gal operation, Creekmore said.
“I don’t fault Del’s for looking at it and wanting to investigate it,” Creekmore told me. But “Deb’s has a really good defensible claim here.”
Over the phone, Creekmore gave me a mini-lecture in trademark law. I don’t have the space to get into all that nitty-gritty. Boiled down, I think he said it can be quite difficult for a big chain to retroactively enforce its registered trademark against a smaller outfit that was using a similar logo years before the registration existed. It’s even more difficult when the two companies are doing business in separate geographic areas, Creekmore said.
“If there was no use of Del’s [trademark] in 1977 in our geographic location, then the two marks can exist simultaneously,” he said. And he added that if Del’s ever came to Roanoke, the Castellis could mount a decent case that Del’s was infringing on Deb’s.
That would be a hoot. But naturally, it could cost both sides upwards of six figures in legal fees, Creekmore said.
Which brings us back to Joyce Castelli, and her visit Monday with Jeffrey Techentin , Del’s silk-stocking lawyer in Providence, R.I.
She reports he was friendly and engaging during their half-hour chat. I would be, too, if I was billing my client hundreds of dollars per hour for each minute of shooting the breeze with a little old lady from Virginia.
Joyce says that when she informed Techentin that Deb’s had been using its logo since 1977, “he looked like he was surprised. When you see somebody face-to-face, you can read their body language, you know?
“He said he’d call me or write me — but that he has to get back to Del’s first,” Joyce Castelli said.
You know what that sounds like, right? Del’s case may be looking more and more like a lemon.
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