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Blockbuster is Closing – Trademark Implications?

Blockbuster is Closing – Trademark Implications?

Way back in the summer of 1994, I worked at a Blockbuster video store. It was one of the highlights of my distinguished career in show business (I’m sure my Lifetime Achievement Oscar is right around the corner). So it hit me just a bit harder than I would have expected when I read the news that Blockbuster is finally shutting its video stores. What are the trademark implications of a move like this?

Blockbuster, which was purchased by Dish Network in 2011, plans to shut all of its remaining 300 U.S. stores, and its distribution network, by January. Blockbuster By Mail, its Netflix competitor (I’d never heard of it either) will also close. However, the BLOCKBUSTER trademark will not disappear entirely. Blockbuster On Demand, a streaming service, will remain in business, as will Blockbuster Home Services, a service that provides licensed movies to Dish Network Subscribers. CNN also reported that the 50 independently owned Blockbuster stores will remain open for now.

BLOCKBUSTER was a strong trademark for several reasons. The word itself was suggestive of movie-related services without being descriptive. For more on the difference between “suggestive” and “descriptive” trademarks, watch out for my upcoming presentation, “How to Choose a Strong Trademark” (the 2nd in a series of presentations that debuted last week with “What Is a Trademark?“)

The term “blockbuster,” originally a World War II-era term for a large bomb, began to be applied to the entertainment context around 1957, according to the Online Etymological Dictionary. A blockbuster movie is one that’s a great commercial success. Of course, “bomb” itself means something very different in show business, but we all understand the implication. The word, when applied to the chain of video stores, suggested (there’s that word again) that the movies you’d rent there would be successful and entertaining.

The BLOCKBUSTER trademark was enhanced by the ubiquitous nature of the stores and their vast, long-lived marketing and advertising campaigns.

Tip: It’s not enough to choose a strong trademark unless you’re prepared to back it up with advertising and marketing to fix the connection in consumers’ minds between the mark and your products or services.

OK, so we know that BLOCKBUSTER is a strong trademark. And now it’s gone, right? So what happens to the name, and can anyone else use it?

I discussed a similar topic almost exactly one year ago in a blog post about the proposed sale of the TWINKIES brand:

Finally, what happens if Hostess Brands fails to sell its portfolio of trademarks? Marks that are not used in commerce for several years (three years is the generally-accepted rule of thumb) are considered abandoned. When a mark retains some level of fame, but no individual entity has rights in it due to abandonment, it can become a “Zombie Trademark” – kept alive in the public’s imagination but not in the marketplace. In theory, another party (or parties, which is where it gets confusing and potentially litigious) could come along and lay claim to it.

In this case, it looks like there is enough evidence of continued use that the BLOCKBUSTER mark won’t entirely disappear from the public eye. If the remaining Blockbuster stores go out of business, and Dish Network fails to maintain the other Blockbuster-branded services, BLOCKBUSTER could sink to “Zombie Trademark” status. As a brand, however, BLOCKBUSTER is not as beloved as TWINKIES. It would take a wave of video store nostalgia for it to be attractive for a new company to try to claim rights to the mark. More likely, the mark will fade away, just like all the mom-and-pop video stores that Blockbuster replaced in its years of market dominance. And noble, underpaid video store clerks like “Clerks'” Randall Graves and the 1994 version of me will have to find something else to do.

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