Racineonline.com target of kringle-related suit
An attorney for Internet Service Provider (ISP) racineonline.com said his client is prepared to comply with the demands of RDK Corp. by handing over all Web domains the firm hosts that contain the words kringle, Danish or Racine.
RDK Corp., which markets its products under the Racine Danish Kringle name, is a commercial baker of the flat Danish pastries of Racine. RDK is suing Racineonline.com, Ad-Vantage Promotions and owner Patrick Flynn, claiming use of the above words in Web addresses would create confusion in the mind of the public.
But Ron Brockman, a Racine attorney representing Lehman’s Bakery, with locations at 1016 S. Green Bay Rd. and 2210 16th St. in Racine, said that if Flynn complies and redirects visitors to his client’s address – www.racinedanish.com — to RDK’s Web site – Lehman’s will sue Flynn for breach of contract.
"We will certainly sue," Brockman said. "He would be giving away something that does not belong to him. He has a contract with us."
But Flynn’s attorney, Jay Nixon of Harvey, Nixon & O’Neil of Racine, said Flynn is running out of energy and patience, particularly since his business liability insurer, Sheboygan-based Acuity, won a declaratory judgment in Racine County Circuit Court absolving them from responsibility for Flynn’s legal expenses in the matter.
It may turn out to be, according to Brockman, a matter of whom Flynn would rather be sued by. But, according to Nixon, RDK’s legal team, headed by David Jinkins of Thompson Coburn LLP, St. Louis, said the fact that Flynn is listed as the administrative contact for the sites he hosts proves that he has ownership and is the correct person to sue. Brockman said Flynn is the target of the suit because he has the shallowest pockets and RDK may have felt he would capitulate.
Jinkins, when reached by phone, refused to comment on their reasons for targeting Flynn or on the case in general.
Flynn in February closed the downtown Racine retail location of his ISP and ad specialty business and moved to Dallas to represent a Florida-based embroidery company in the Southwest. He continues to operate racineonline.com but has divested of some services including Web site design.
A weak trademark?
RDK filed its suit in Eastern Wisconsin District Federal Court in May of last year for helping a Racine bakery — Larsen’s — register the domain name racinekringle.com, alleging it was too similar to their own name. They also allege Flynn broke federal cybersquatting law by registering, but not using, the domain racinedanishkringle.com. The parties are in a discovery phase that could last until a trial date in February of 2003.
But Brockman insists that Racine Danish Kringle would have a hard time defending its trademark in court, but regardless is trying to lay claim to other generic terms as well.
"In their federal trademark registration, they disclaimed any exclusive right to the words Danish or kringle except in the above form," Brockman said. "They only got away with Racine because when they filed for the trademark, they had a Milwaukee mailing address."
Brockman cited legal precedent indicating that Danish pastry is generic and can not be claimed exclusively by any one company. Likewise, the word kringle has been proved a generic descriptive term for a type of pastry.
"The only thing that makes this go is the cybersquatting charge," Brockman said, referring to the fact that Flynn had registered racinedanishkringle.com and at one time had offered it for lease. "That was something Congress did to protect people with famous names – to prevent someone from registering their trademark and then charging them millions for it. It was not designed to protect general, descriptive things like Racine, kringle or Danish."
March 29, 2002 Small Business Times, Milwaukee
