Friday, September 4, 2009
Boogity Brawl Comes To A Legal End
It certainly is interesting to see how two people can have different opinions on the same topic. It is even more interesting to see how we define "intellectual property" on the NASCAR side of the legal system. This is the article in Cupscene.com:
A spokesperson for NASCAR’s Darrell Waltrip Thursday responded to a lawsuit filed against a New Brunswick Canada businessman for the use of the word ‘boogity’.
Randy Nicholson, a long-time racing fan, was forced to change the name of his tiny memorabilia shop under the threat of a lawsuit by Waltrip who accused Nicholson who of infringing on a trademark Waltrip claims he has on the word ‘boogity’. Nicholson initially called his business Boogity Boogity Racing, and then later changed the name to Boogity Sportswear.
As a television commentator, Waltrip says, “Boogity, boogity, boogity, let’s go racin’, boys” each time the green flag drops.
According to Nicholson though, the trademark that wasn’t registered by Waltrip until four years after Nicholson’s store was established.
Waltrip’s longtime business manager however, took issue with Nicholson’s claims.
“It’s unfortunate to read the articles about Mr. Nicholson’s store, as they do not tell the whole story”, said Van Colley in a statement. “The truth is DW first came up with Boogity Boogity Boogity and then the name of the store appeared.
“Mr. Nicholson only used Boogity as a result of DW’s earlier use on FOX. In my opinion, it is not a coincidence that DW started his broadcasts with Boogity, Boogity, Boogity in March of 2002 and then 9 months later, with his business partner, Richard Poulin, that Mr. Nicholson incorporated a company called BOOGIDDY BOOGIDDY RACING INC on November 6, 2002. He then changed the corporate name to Boogity Boogity Boogity Racing Inc on March 3, 2003. That company was dissolved on July 25, 2008. Then the store operated under the name Boogity Sportswear.
The shop went as far as applying for DW’s trademark of Boogity, Boogity Boogity which was rejected in late 2007 by the Canadian Trademark Office.”
According to records, Waltrip registered the catch phrase as a trademark in Canada on Oct. 31, 2005.
“My point is there is no way Mr. Nicholson should be surprised about what has happened,” Van Colley said. “It is odd that the shop filed for DW’s trademark.”
Whether Mr. Nicholson is a small business owner or the owner of a large corporation is irrelevant to the matter. You simply can’t take some one’s legally trademarked intellectual property and attempt to profit from it. Common sense tells me that I can’t simply throw up some golden arches in my front yard, hang a sign that says McDonalds on it and fire up my grill to attempt to sell some hamburgers simply because I want to.
We appreciate Mr. Nicholson being a NASCAR fan and his selling of legally licensed NASCAR merchandise in his store.”
Nicholson has until next Tuesday to wipe his shop clean of the word “boogity” and has already taken down his signs.
“I never dreamed in a million years that something like this could ever happen,” Nicholson said. “I’ve been open for eight years, but now I have had to take my signs down, and people driving past think I am closed.
“I really don’t understand this,” he added. “It is not like I was making money off of Darrell Waltrip’s name. It’s a word for goodness sakes- ‘boogity’ - and I am not even sure it is a real word. It’s a redneck word.
Nicholson said it will cost him between $5,000 and $8,000 to register a new name, put up signs, change his business cards and letterhead, order new checks change the way his phone is listed, and set up a new website.
“I used to like Darrell Waltrip,” Nicholson added. “But I think if I had him here now, I’d tear out his wind pipe.”
Speaking for Waltrip Van Colley said. “We also wish no ill will to Mr. Nicholson, despite his comment of wanting to “tear out DW’s wind pipe.” At the same time, I won’t apologize for protecting DW’s legal rights. We, like NASCAR, the drivers and teams in our sport fight this kind of thing all the time.”
That certainly is an interesting look at some of the off-track issues NASCAR personalities have to deal with in the business world.
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