Court Cleans Up Trademark Status of the Phrase “Meth Lab Cleanup”

The holy grail of trademark owners is to obtain enforceable trademark rights for the standard ways people talk to each other. If achieved, the trademark owner can put up a toll gate on ordinary conversation and thwart or even shut down many competitive efforts. Trademark law has numerous doctrines designed to prevent these outcomes, but over and over we continue to see generic terms mischaracterized as “highly descriptive,” making them potentially eligible for trademark weaponizing and abusive enforcements.

Last year I blogged about one example involving the phrase “meth lab cleanup.” You may recall that one competitor, Meth Lab Cleanup LLC, successfully enforced its trademark claims against another competitor who was using the phrase in its metatags (actually, the title tag, but no one seemed to understand the difference). It was a baffling ruling, as evidenced by the number of times “WTF” and “FFS” appeared in my blog post.

That ruling was partially skewed by a prior settlement agreement that handcuffed the defense. However, Meth Lab Cleanup LLC also sparred with another competitor, Bio Clean, over website usage both on the page and in metatags, and all defenses were in play in that suit. Perhaps unsurprisingly, when vigorously contested (which apparently required a change in defense counsel), the court reaches the only logical conclusion–that the phrase is generic:

It is not necessary that “meth lab cleanup” be the only generic name for these services. “Meth lab cleanup” does not even need to be the most common generic name for the services. All that matters is whether “meth lab cleanup” is one of the generic names for the services. Bio Clean’s evidence shows that is the case.

Seeking to overcome this, Meth Lab Cleanup LLC asked (coerced?) its vendors to submit declarations that it had sole usage in the industry of the term “meth lab cleanup.” This evidence backfires due to some good fact investigation by the defense team: “More than half of the declarants testifying that they do not know of anyone in the industry using “meth lab cleanup” in a generic manner are, themselves, using meth lab cleanup in a generic manner.”

Meth Lab Cleanup LLC had (after some back-and-forth with the PTO) obtained trademark registrations in the phrase, but the court nukes the registrations:

given the numerous examples Bio Clean has submitted of generic usage of the phrase “meth lab cleanup” in newspapers, by governmental agencies, in online Yellow Pages, and by competitors in the industry, the Court finds no reasonable jury could conclude that the phrase “meth lab cleanup” is not generic.

As an alternative finding, the court says “meth lab cleanup” is a descriptive term that has not achieved secondary meaning (due to all of the other industry usage) despite the trademark registrations. As another alternative finding, the court says that Bio Clean’s usage of the term would qualify as descriptive fair use, including the metatags:

The other use on the website, in the metatags, is also descriptive, and not as a trademark. The vast majority of visitors to the website will not see the metatag, so it doesn’t make sense to claim Bio Clean is using this invisible tag to indicate the source of its services. Moreover, the context of this metatag, in amongst other tags such as “crime scene cleanup,” “biohazard cleanup,” “blood,” “body fluid,” and “hoarding cleanup,” shows that the phrase is being used to describe Bio Clean’s services, and not to describe the source of those services.

So justice was served in this case. A weaponized generic phrase was neutralized, and perhaps Meth Lab Cleanup LLC will abandon its litigious ways in favor of competing on the merits. But so long as the Trademark Office keeps granting registrations on “highly descriptive” terms, I expect I’ll have an ample supply of future bloggable material.

Case citation: Meth Lab Cleanup LLC v. Bio Clean, Inc., C14-1259RAJ (W.D. Wash. Aug. 31, 2016)