“Hon”believable: Can Cafe Hon’s Denise Whiting Trademark Baltimore’s Famous Term of Endearment?

Cafe Hon is a Baltimore restaurant. It takes its name and theme from what is sometimes known as the “hon culture” of the Charm City: the exuberant, slightly tacky, working-class world which serves as the background for many a John Waters movie and whose stereotypical representative is a beehive-bedecked lady inclined to greet everyone as, you guessed it, “Hon.” Over the nearly twenty years of its existence, Cafe Hon’s owner, Denise Whiting, has sold “Hon” logo mugs, t-shirts, and other paraphernalia, and created HonFest, a celebration of “Hon” culture, among other endeavors.

Recently, Whiting let slip in a newspaper article about her new gift shop Hontown that she has federally registered “Hon” as a trademark and recently licensed the term back to the City of Baltimore for use in a public transit advertising campaign.

Soon afterwards, the Baltimore Sun wrote an article subtly mocking Whiting’s trademark registration, pointing out the relatively large number of products for which she has registered the mark and registering protest from other local businesspeople, one of whom says, “['Hon'] belongs to the city of Baltimore.” The Sun also quotes University of Maryland trademark law adjunct professor and trademark practitioner James Astrachan, who says, “She’s taken the vernacular and is trying to create proprietary rights, and that’s just wrong… How many people know she’s the source of ‘hon’ when every waitress in the city who plops down a piece of pie in front of you says, ‘Enjoy this, hon’?”

The Sun’s editorial board, sensing a controversy to be milked, piled on with a sarcastic and, dare I say, stupid editorial calling Whiting’s registration “a betrayal of the civic trust” and omitting the word “hon” throughout because, according to the unnamed editorialists, “we would not want Café You-Know-What owner Denise Whiting to demand we turn over the entire press run of the newspaper, as she did with some unfortunate soul who was selling H-word paraphernalia at the airport a few years ago.”

Sun blog post indicates that the Sun has run at least five pieces on the “Hon” trademark flap in the past week, including a Web poll.

In her defense, Ms. Whiting’s attorney, Kathryn Miller Goldman, states, “[Whiting's] not trying to suggest that people can’t use the word ‘Hon’; it’s that they can’t sell things using the word ‘Hon”…. People can’t take her mark and put it on their goods. That’s what trademark is all about.”

Ms. Goldman is correct. Whiting’s registration protects her ability to use the word “Hon” in commerce as a mark: as the name of a product, service or business. Given that she owns several businesses with “Hon” in their names and sells many products featuring her distinct “Hon” logo, this is an entirely sensible registration. More importantly, none of the news coverage cites any evidence of Whiting enforcing her trademark inappropriately. Most negative news coverage of trademark holders focuses on bullying and overreaching in enforcement, and none of the news coverage indicates that Whiting has been unfair in dealing with other potential users of the mark, with the possible exception of her aforementioned seizure of some “Hon”-labeled merchandise at the Baltmore airport.

With all due respect to Mr. Astrachan, his waitress analogy is poor. As a teacher of trademark law, he should know that the issue is not whether a waitress is allowed to use the term “Hon,” or whether Ms. Whiting invented the term. The issue is whether she is allowed to limit the use of the term by others as a mark for a product or service in order to avoid consumer confusion.

Obviously the use of the term has been widespread in Baltimore, but clearly not in a commercial sense, as Ms. Whiting managed to open several “Hon”-branded businesses without encountering anyone else already using the term as a mark. Today, if someone were to open a restaurant called “Hon City” or a store called “Honworld,” it seems quite likely that a casual observer would incorrectly assume such establishments were part of Ms. Whiting’s “Hon” empire, and consumer confusion of that order is exactly what trademark registration is supposed to prevent.

While Ms. Whiting is in the right, there are nonetheless a few lessons to be gleaned from the “Hon” controversy for unwary trademark registrants.

First, even if you’re proud of the hard work you’ve put into the goods or services associated with your mark, and the mark itself, don’t say anything that could be taken as bragging about having been the first person to have registered a particular mark. You want the goodwill associated with the mark to support your claim to the mark, not the simple fact of your having gotten to the mark first. Consumers are often suspicious of business strategies that can be portrayed as sneaky, especially where the law comes into play.

Second, be very cautious about the claims you lay to terms or phrases that large groups of people might feel are important to a group identity, regardless of your legal right to do so. You might win the trademark battle but lose the public relations war. For further reference, see the New Orleans Saints “Who Dat?” controversy.

Photo of menu and mug at Cafe Hon by ktylerconk.

This entry was posted by Richard on Monday, December 13th, 2010 at 10:10 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response below, or trackback from your own site.

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  1. December 13th, 2010

    @ 10:53 am

    [...] This post was mentioned on Twitter by Ambivalent Ricky, 95years. 95years said: New on 95Years: “Hon”believable: Can Cafe Hon’s Denise Whiting Trademark Baltimore’s Famous Term of Endearment? http://bit.ly/fe3iv7 [...]

  2. December 19th, 2010

    @ 1:20 am

    SJ posted:

    In addition to the seizure of the airport vendor’s merchandise, the licensing of the use of the term to the MTA seems overreaching and probably wouldn’t hold up in court. But beyond that, this controversy is probably more about Ms. Whiting’s overall role in the community than the specific trademarking. Whiting comes off as patronizing and paternalistic in her dealings with the neighborhood and that is certainly reflected in comments in the Sun article, as well as her tone deafness as to how her statements will be perceived.

  3. January 20th, 2011

    @ 12:29 am

    Bmore or Bust posted:

    Being legally allowed to limit the use of “Hon” in commercial trade does not guarantee public acceptance. Do you want to be legally “right” with a flawed law that allows you to take public vernacular and limit its commercial use to your use only, or do you want people to actually buy your stuff and not thrash the thread of reputation you have left? It’s up to her how she moves on from here.

  4. January 20th, 2011

    @ 1:00 am

    Kathy posted:

    Bmore or Bust: Loved your comment! Its not just a legal issue anymore. It is a legal issue, a business issue and PR issue. Fascinating in all respects. I dont envy her position, but she has to do something and soon, or I anticipate the Honslaught will continue. She has wasted a lot of time. What use is it to have a federal trademark that everyone despises?

  5. January 20th, 2011

    @ 8:12 am

    Ken Gelbard posted:

    It is interesting that the sun did “pile on” but neglected to cover the story the Peter angelos was listed as the worst owner in Baseball by Sports Illustrated. Oh well, the sun will be gone soon

  6. January 20th, 2011

    @ 1:53 pm

    Kathy posted:

    The author might want to update this article in light of recent discoveries. What about the cease-and-desist letter sent to the Thanks, Hon shop which did not sell any merchandise with the word Hon on it? See http://northbaltimore.patch.com/articles/letter-demanded-shop-stop-using-hon
    What about Ms. Whiting’s insistence that her trademark covered the MTA ad campaign? See Baltimore Sun articles. What about Ms. Whiting’s insistence that no one at Honfest offer “any and all items.” See HonFest website. All of this is new information and inconsistent with the author’s original statement above of : “More importantly, none of the news coverage cites any evidence of Whiting enforcing her trademark inappropriately. Most negative news coverage of trademark holders focuses on bullying and overreaching in enforcement, and none of the news coverage indicates that Whiting has been unfair in dealing with other potential users of the mark, with the possible exception of her aforementioned seizure of some “Hon”-labeled merchandise at the Baltmore airport.”

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