The Dirt Shirt - The dirt is flying

On Tuesday (June 12) CBC Radio 1 ran an article about a small company on Prince Edward Island that is having some trade-mark troubles. The article, in written form, is here.

The background is this – (if I get it wrong please let me know) A chap had an idea back in the 1990’s that he would sell t-shirts stained with PEI’s distinctive red soil. The process at the time was quite simple – throw some white t-shirts in a garbage can with some soil, and stir with a paddle. The resulting shirt was called the “Dirt shirt”. The gentleman did not, unfortunately, seek to register the name “dirt shirt” as a trade-mark. In the interview he said it was because his only source of cash at the time was a $300 Canadian Tire credit card and a $2000 loan from his parents.

I actually still have one of the original dirt shirts I am proud to say.

Fast forward a number of years and the shirts are becoming popular. What happens? Well, as you can imagine, some of the other players in the tourism industry decided it was a good idea to make their own shirts stained red from the soil of PEI. Now, by itself this is not an issue. However, two problems emerged (in the mind of the “dirt short” owner). One, the competitors used names which were similar in name or style to the name “dirt shirt”. Two, the competitors did not use real soil to create the colouring in the shirts. They used dye.

Ultimately there was litigation.

Now, the CBC article appeared to be a fairly one sided description of the events and I am not going to weight in with my opinion but I will say this about the whole dirty mess (pun intended) – spending the money in the early days to do something right can be worth its weight in gold later on. If our entrepreneur had registered the phrase “dirt shirt” in the early days (and assuming it was permitted) he might not have found himself in the position he is in today. The Trade-marks Act provides some useful tools for dealing with alleged trade-mark infringement.

This is not to say that the common law (non legislation based law created by judges) does not provide some remedies – it does. However, without getting into the legalese of it all, the bottom line is that it is a far superior position to be in if you do acquire a registered trade-mark.

Now, hindsight is almost always 20/20. There is no way the guy could have known in the beginning that his business would be successful or that he would run into legal issues over the name. Having said that, had he sought help from a trade-mark lawyer, he may well have figured out how to make it happen (the trade-mark registration that is).

This has always been one of the points of this blog – to spread awareness. The reality is that there are tons of useful websites out there which discuss the topic of trade-marks and the Canadian Intellectual Property Office’s should be your starting point.

Making informed decisions – that is what it is all about.

Good luck to the “dirt shirt” man. Maybe I will frame mine and put it in my office as a discussion piece.

Comments

[barb kerr]

charles,
interesting comments re: dirt shirt. i hadn't heard about the litigation until i read it on your blog.
hope work is well.

barb

[Jacob Oram]

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