This weekend I ran the Shamrock Shuffle in Chicago with a few friends of mine. As we passed the Willis (Sears) Tower, one of my friends commented that we were nearly finished as we had just passed the Sears Tower. Being snarky (and a little tired) I told her it was clearly the Willis Tower, all she had to do was look at the sign on the side of the tower. To no great surprise to me, all three women I was running with chimed in that the Willis Tower would always be the Sears Tower and that it would always be Marshall Fields, not Macy's as far as they were concerned.
This of course, set an interesting thought loose in my head. What is a trademark owner or business to do when they acquire a well known or quite popular mark and then do away with it? What if it becomes a zombie trademark, feeding on your company's or mark's lack of goodwill as a means to survive, much the arisen dead in a terrible movie.1 I am sure this was certainly a business consideration the purchasing businesses take into account, but at the same time, I find the underground resistance attitude to be an interesting consumer backlash. It certainly demonstrates that trademarks are by no means fungible and that it requires a great deal of care to get consumers to make this kind of switch. I personally have a hard time thinking about the Sears Tower as the Willis and have to actively remember to say Willis instead. Macy's v. Marshall Fields I am less sensitive about, possibly because I am not a huge department store shopper.
It's an interesting debate, what you have to do to keep a zombie trademark from sneaking in through the back window and eating your brains...
1: For a further and probably more enlightened discussion of this topic, see Jerome Gilson & Anne Gilson Lalonde, The Zombie Trademark: A Windfall and a Pitfall, 98 Trademark Rep. 1280 (2008).
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