The Good Dog Hot Dogs truck has almost disappeared from the Internet overnight, even though they are very much still in business. On September 19, both their Facebook page and Web site were taken down. The same day, the popular food truck posted to Twitter:
"Our apologies, we're currently working on temporary/permanent solutions to our lack of [Facebook] and website. Twitter is the only way to see updates."
An underscore now appears after the company's Twitter handle. Instead of @gooddoghotdogs they are now "@gooddoghotdogs_" and the name now reads "Eat Well & Live Long."
Brand recognition takes a long time to build, but can be destroyed overnight when a "cease and desist" letter shows up. The smaller the business, the more harmful the repercussions can be.
When Good Dog Hot Dogs was in the process of starting their company, they dutifully searched the United States Patent and Trademark Office database to ensure that no one else had registered the name. No one had, so they proceeded to open their business, design a crisp yellow and red logo and get their food truck painted. They couldn't afford to hire someone to do their Web site, so they did it themselves using WordPress. They started a Twitter presence as @gooddoghotdogs.
On February 15, 2011, they received a Tweet from a man named Bruce Keith. He runs a food cart in Colorado. "Ooops - you've chosen a user name which is a trademark of my company in Colorado," he said. "Check our website for proof that our company has been around since 2003 - www.gooddoghotdogs.com."
That wasn't quite true, because in trademark law, simply sticking a ™ next to your business name on your Web site does not necessarily make it a trademark. According to an overview of trademark law at the Berkman Center at Harvard University Web site:
"Assuming that a trademark qualifies for protection, rights to a trademark can be acquired in one of two ways: (1) by being the first to use the mark in commerce; or (2) by being the first to register the mark with the U.S. Patent and Trademark Office ("PTO"). 15 U.S.C. � 1127(a)."
"The paint was still dripping off the truck when this person contacted us on Twitter," said Daniel Caballero of the Houston-based Good Dog Hot Dogs. "We believed we did our homework and he did not actually have a trademark. Besides that, we're in Houston and he's in a different state. What threat are we to him?" Caballero requested proof of the Colorado man's claim.
There is a question as to whether the Colorado Good Dogs Hot Dogs used the mark in commerce before the Houston Good Dog Hot Dogs. What is not in question is that after the Twitter exchange, both companies filed for trademark with the U.S. PTO. The Colorado company filed first, though. The Houston-based Good Dog Hot Dogs received an "Office Action," which is a letter sent by the U.S. PTO when there are problems with the trademark application.
An attorney retained by the Houston company advised them that since the Colorado company had been in business since 2004 (and had also registered the domain name gooddoghotdogs.com the same year), it was pointless to continue with the trademark registration. "You're not going to win," he said.
According to Caballero, as soon as Keith had his trademark letter in hand, he contacted Facebook, Twitter and WordPress with his claim of infringement.
Facebook deleted the Houston Good Dog Hot Dog page. "If he flags us on Facebook one more time, we'll be banned altogether," says Caballero. WordPress removed the Web site, even though it was not the gooddoghotdogs.com domain. (The Houston company was using www.gooddogfoodtruck.com.)
Twitter was kinder, only adding an underscore to the Houston company's Twitter handle. Unlike WordPress and Facebook, they didn't completely delete the account. "He's going after Yelp now," says Caballero.
It is likely that Good Dog Hot Dogs in Houston will have to change its name, and that comes at a heavy price. The truck will have to be repainted and new marketing materials produced. Caballero estimates the cost of rebranding will be around $3,000 (closer to $4,000 if they retain an attorney to assist with trademarking the new name). The cost of the loss of brand recognition will be harder to quantify, but significant nonetheless.
The lesson to be learned from Good Dog Hot Dog's story is that small businesses need to file for trademark with the U.S. PTO as soon as possible, ideally with the assistance of an attorney. Businesses that do not file for a trademark risk the wrath of a vengeful business owner... even if the business is in another state.
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There is some happy news, though. Caballero believes they are close to signing on a small storefront location in the Heights. There's a good chance the sign won't say "Good Dog Hot Dogs."
Good Dog Hot Dogs in Colorado has not yet responded to an e-mailed request for comments on the situation.