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James B. Astrachan: So sue me, Hon!

The recent revelation that Café Hon owns the trademark HON has stirred controversy among persons who think HON belongs to the residents of the City of Baltimore and should not, or cannot, be monopolized by one entity for its commercial gain. What’s a “Hon”? And does Café Hon have the right to enforce its HON trademark?

Definitions of Hon abound because of its common and well-known usage. The Lexicon of Bawlamarese (How to co-moon-icate wiff the natives), defines Hon as “The universal name … Like Sir, Ms. … interchangeable with any name.” My usual waitress at the Sip-n-Bite emporium of fine dining has been calling me Hon for six years. She has no idea of my name, nor does she care. We are all Hons to her, regardless of age or gender.

Wikipedia defines “honey” with a tip of its hat to Baltimore. “ … ‘Honeybun’ and the abbreviation ‘hon’ has become a term of endearment in most of the English-speaking world … In … Baltimore, Maryland, [Hon] is used when addressing casual acquaintances or even strangers.”

A visitor to World Reference Forums opines that “I am fond of terms of endearment and use them cheerfully. I call most of my friends hon, honey, sweetie, dear, anything like that … .” English-Test.net relates that “The short form of honey is hun, or sometimes it’s spelled hon.”

The Culture of Baltimore Wikipedia adds, “Between the 1950s and 1970s, it was common to see working class local women dressing in bright, printed dresses with outdated glasses and beehive hairdos … Hon ( … an abbreviation of honey) was a common informal name for someone else.”

The Hon culture predates Café Hon, the restaurant in Hampden that has obtained federal trademark registrations for CAFÉ HON and simply HON. John Waters has extensively and with accuracy parodied Baltimore’s Hon culture in movies like Pink Flamingo and Hairspray.

Even the most cursory Internet search reveals that there are many, many other references to Hon in relation to Baltimore. The Welcome to Baltimore, Hon! website celebrates all things Bawlamer, and dedicates its title to the Hon, indicating, perhaps, that there is no other word that best describes Baltimore.

The owners of Café Hon have properly registered CAFÉ HON for restaurant services. Mention Café Hon to most Baltimoreans and that quirky restaurant in Hampden comes to mind to the exclusion of all other cafes. That’s what trademarks are intended to do — they designate a single source of goods or services to consumers because they are distinctive. But Café Hon has also registered the mark HON for use with retail stores, paper goods and the like.

My first objection to this registration is that the word is hardly distinctive, and generic words can never serve as trademarks. HON should not serve to describe the source of gift shops or paper napkins — it describes those ladies in bright dresses with out-of-date glasses and beehive hairdos. It describes that waitress at the Sip-n-Bite who plops down the pie and calls me “Hon” even though she doesn’t know me. It describes the culture of Baltimore in one word and — unlike apple and APPLE computers, ivory and IVORY soap, or shell and SHELL petroleum — Hon belongs to all of us because it is a part of our culture and the city in which we live. We use the term in so many ways, and so frequently, that it can never serve to designate a source of napkins.

HON should remain in the public domain where it was born, discovered and cleverly exploited by Café Hon. Granting to Café Hon a monopoly over the word, even if used with stores and napkins, is the equivalent to removing the word from the public’s use, risking that each time a person uses the word commercially, he or she would be improperly subjected to a claim of trademark infringement regardless of how the mark is used. Evidencing that this is a real risk is the recent report that Café Hon “allowed” the Maryland Mass Transit Administration to use HON (not CAFÉ HON) on ads but insisted on creative control as if it was the owner of the word, which apparently it thinks it is.

The only way that a generic term can be elevated into trademark status — that is, it comes to mean the source of the goods — is through a radical change in how consumers perceive the use of the word. Given how popular Hon is in this town, it is highly unlikely that, despite Café Hon’s efforts to the contrary, Hon will ever come to mean anything other than the universal name, the abbreviation for honey or a way to address casual acquaintances.

My second objection is that the HON mark is very weak. If a trademark challenge occurs and a court is not inclined to find that Café Hon’s use of the HON mark is generic, it will still understand that all marks are not equal. Some are strong and they enjoy the highest level of protection. Some are weak and they receive little protection. Strength is measured by consumer perception. Weak marks are relatively unknown or very much like other marks, or words, already in use. They exist in a crowded field. A weak mark does not identify goods sold under the mark as emanating from a particular source. The word HON is in the lexicon, and as such it is in common and frequent usage. It will be very difficult, if not impossible, for HON to achieve the status of strength that allows protection of it as a mark.

Finally, the use of HON to adorn napkins and shirts may be inconsistent with a trademark’s role as an identifier of source. Instead this use of a word to enhance a product may be seen as functional and as a product in itself. Trademark law might not protect such a use.

For the same reason that 9th Circuit Justice Alex Kozinski quipped in his introduction to an opinion some years back, “No one can tell me I can’t put a BAND-AID on a problem,” no one can tell me I can’t use HON in any fashion I please. The word is not entitled to the grant of a monopoly or protection — not in this town, anyway. As the bumper sticker reads: So Sue Me, Hon.

James B. Astrachan is the author of The Law of Advertising, published by Matthew Bender-Lexis/Nexis.