✏️ Legal Pad
The Beaver Bites Back
Beavercreek, Ohio is named for Beaver Creek, which, presumably, is named for beavers. Vik Boparai has run Beaver’s Mini Mart there for over a decade, under a sign with a smiling cartoon beaver on it. Late last month Buc-ee’s, the Texas chain famous for brisket, immaculate bathrooms, and a bucktoothed beaver in a red circle, sued him, apparently triggered by an Ohio trademark application that collided with its federal registration. Hand up: I like both Buc-ee’s and lawsuits. This should not surprise my tens of readers.
Then John Oliver got hold of it. Last Week Tonight sided with the small businesses, sold “Buc-Off” merchandise featuring its own squirrel mascot, and came back the following Sunday for Beavercreek. Businesses that never had a beaver started adding beavers to their logos. One bookstore posted: “Come and get us, Buc-ee’s. You don’t own every beaver.”
Which is, as a matter of law, correct. Trademark law hands nobody a monopoly on an animal. It protects consumers from confusion, not companies from competition. Under the Lanham Act the question is likelihood of confusion, measured in the Sixth Circuit by the Frisch’s factors: strength of the mark, similarity, relatedness of the goods, actual confusion, and intent.
Some cut Buc-ee’s way: same industry, same rodent, strong mark. Others cut hard the other way. Boparai was there first, in a town named after the animal, and nobody ever pulled into a mini mart in Beavercreek expecting Texas brisket. Filed in Greenville it would look much the same; the Fourth Circuit runs its own version of those factors.
The more dangerous claim is dilution. Under 15 U.S.C. § 1125(c), the owner of a famous mark can win without proving anyone was confused at all, only that the resemblance chips away at what makes the mark distinctive. That is how Buc-ee’s beat Choke Canyon’s alligator logo in front of a Texas jury in 2018. An alligator. Companies in this posture always say a trademark not policed is a trademark lost. There is a kernel of truth in it (ask Bayer about aspirin). But the duty is to protect the mark’s distinctiveness, not to sue every small business in America. Nobody ever lost a trademark by declining to bankrupt a mini mart.
And it usually works, for a reason unrelated to the merits. A federal trademark case tried to verdict runs well into six figures, so Boparai’s defense may be excellent and still unaffordable. That’s the variable the factors can’t measure: how long each side can afford to keep arguing. Which is why a comedy segment matters more than it should. It didn’t change the law. It changed the arithmetic, by making the cheapest outcome available to Buc-ee’s something other than winning.
💡 Sidebar
Lawyer Trick No. 11: Silence Is a Question
Ask something uncomfortable. Then say nothing.
That’s the entire trick, and the hardest one to execute, because every instinct you have will be screaming at you to rescue the moment. Four seconds of silence feels, from the inside, like a minute. So we fill the vacuum. We rephrase, we soften, we tack on “or whatever,” and hand the witness a better answer than the one he was about to give.
Because he feels that silence too. He answered, nothing happened, so he assumes the answer was insufficient and starts adding. The additions are where the case is. I’ve taken depositions where the answer to my question was three words and the answer to the silence was two pages.
The court reporter doesn’t record silence. There isn’t an objection to it. It’s invisible on the transcript, which makes it the only free question you get. It works in mediation too, and on three-year-olds, though results vary.
Two rules. First, it’s being used on you: when opposing counsel goes quiet after your answer, that’s not confusion, it’s fishing. Answer the question asked, then stop. Second, don’t use it as a cudgel on a frightened person. It’s a tool for getting information, not for making somebody cry.
Ask. Then wait.
⚖️ Closing Arguments
The ConLaw Professor Responds!
Two weeks ago I wrote about Dr. Fauci invoking the Fifth before a Senate committee, and closed with a line my father has repeated for forty years, from his Constitutional Law professor: “Never argue your constitutional rights with a police officer in the middle of the night. That’s what they build courthouses for.” To my mortification, my dad sent him the post. This week he wrote back.
“Ryan. I was your father’s Con Law professor. I agree with your analysis of Fauci’s predicament. I add that an 85 year old man may not have been able to handle hostile questions. Moreover, the administration certainly likes to make federal questions out of nothing. See the prosecutions of Comey and Jack Smith (the latter involving concededly true testimony given before Congress.). No wonder Fauci was reluctant to testify.
I add for the record that I have been in many courtrooms.
Professor William L. Reynolds (retired).”
“I agree with your analysis” is the most gratifying sentence a lawyer can receive from the man who taught his father constitutional law. And then, in the manner of professors everywhere, he agrees by adding what you missed. The first is not a legal point at all. An eighty-five-year-old man may not have been able to handle hostile questions. I spent a page on whether the privilege was available to him and never asked whether he could withstand the room. Different questions, and only one gets taught.
The second is what I called door three, the part I was least sure of- that Fauci’s real exposure was not the pardoned decade but the hearing itself, since answering could manufacture a brand-new federal offense. Reynolds supplies the examples, and I would put them more precisely. Comey’s indictment over 2020 Senate testimony was dismissed in November for an unlawfully appointed prosecutor, by Judge Cameron McGowan Currie of our own District of South Carolina, and that is on appeal. Jack Smith has been referred to the Justice Department by a House committee, which is not the same as being charged. Neither distinction blunts the point. A witness does not need a conviction to be deterred, only a plausible path from “I answered honestly” to “I am now a defendant.”
And then: “I add for the record that I have been in many courtrooms.” Foot, meet mouth. I am formally retract my jab from two weeks ago.
My father remembered one sentence out of three years of law school. The man who said it is still reading, still arguing, still supplying the point you missed. That’s what a true teacher looks like at eighty-one. Professor, lunch in Towson is on Alderson Law.
Court is in recess- see you next Friday.
