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“I’d Rather Be Blu” in 2-part dis-harmony

The legal battle between Zippo and Lorillard over the trademark "Blu" has moved to Albion's shores from the land of "Bier und Brat", where the cigarette manufacturer got the "wurst" of it. Zippo and Lorillard are warbling a duet of "I'd rather be blu" in two-part dis-harmony. And what happened to the "-e" in "blue" – can't anybody spell any more?

A decision is expected in a little over a year. What?! A year to decide who used the name "Blu" first?! Let's walk the legal experts through this immensely complicated issue: 1.) in 2007 a manufacturer of cigarette lighters calls one of its products Blu, and gets a trademark – the flame is blue, get it? 2.) later, a new company making a cigarette-related product calls its imitation cigarette Blu; 3.) a few years later a giant cigarette company buys the new company, claims the right to the name, and has the cash to prove it.

Is there something so arcane here that it will take dozens of sharp legal minds more than a year to figure it out? Did someone use the name first? Did someone else take it later? Does the phrase "no-brainer" come to mind?

Of course anyone who has read Bleak House knows that it's not as simple as all that,  getting one's case through the courts of the sceptered isle. It can take longer than getting a "substantial equivalence" application accepted by the FDA's Center for Tobacco Products (if you're not R. J. Reynolds).

Lorillard, soon-to-be-former "owner" of Blu E-Cigarettes, and Imperial Tobacco, the "owner apparent" of the spelling-challenged e-cig firm, have the advantage of being conglomerates with several subsidiary firms that can all file separate lawsuits. In this particular instance, two subsidiaries have sued Zippo, arguing that no one could possibly be confused by the use of the same name by an e-cigarette company and a cigarette lighter company.

Both Cygnet UK trading Ltd. and Lorillard Technologies Ltd., subsidiaries of Lorillard, and presumably soon to be subsidiaries of Imperial, have sued Zippo in a London court, and they have sued pre-emptively. After being burned in the German courts, apparently it seemed wise to take the initiative in Britain. Perhaps the double lawsuit is why it will take the good barristers so long to figure the whole thing out. To the vaper on the street, it seems fairly transparent: cherchez l'argent!

Says a Lorillard exec: “Zippo is trying to unfairly capitalize on the commercial success of our Blu e-cigs electronic cigarettes business despite the fact that Blu e-cigs products could not possibly cause damage to Zippo's lighter sales.” In addition to the use of a split infinitive, the Lorillard spokesperson seems befuddled on issues of chronology. How does the selection of a name in 2007 infringe on the rights of a company founded later, and on those of a conglomerate that bought it even later yet?

Perhaps Imperial can resolve this. In 2013 they bought rights to a product invented in 2003, and are now suing companies founded later, for infringement on a patent they had no part in creating. (This is called "international property trolling.") Blu was initially one of those companies, but as the new owner of Blu, it seems unlikely that Imperial will sue its own subsidiary.

Then again, in the neo-Dickensian world of tobacco "law" – what could be surprising?

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