Chieftain Whistle Name

serpent · Post by **serpent** » Tue Nov 05, 2002 9:56 am

In Ecclesiastes, it is written: "What has been is what will be, and what has been done is what will be done; there is nothing new under the sun." ... been true for a long time, huh, podners?

Cheers,
Bill Whedon

goesto11 · Post by **goesto11** » Tue Nov 05, 2002 10:00 am

Wombat,

I understand your position, but there are clear (?) boundaries, at least in the US. But I don't think anyone here wants a treatise on Trademark law.

I think the main issue here is ethics. Was there someone who was trying, unfairly, to leverage someone else's name? I think here the answer is yes, so I would not support that business by purchasing from them. But ultimately, it is the band the Chieftains that has to decide if they want to do anything about it, and they have apparaently decided that it is not important to them.

John Mac

Wombat · Post by **Wombat** » Tue Nov 05, 2002 10:06 am

I think you're right, John. I just don't think that the boundaries are clear. But they don't have to be. As consumers, we all have the right to boycott products if we think there is anything unethical about them (or their producers) and to publicise our reasons. In the marginal cases, some will agree and some won't.

OutOfBreath · Post by **OutOfBreath** » Tue Nov 05, 2002 11:23 am

On 2002-11-05 10:46, Wombat wrote:
The Joannie Madden example does seem a clear rip-off. But that's a personal name, not a descriptive name. That said, if there is another Joannie Madden around who makes whistles, she would have every right to market her whistles under that name.

Wrong. At least under US law. Just ask anybody named McDonald who has tried to name their hamburger stand after themself in the past forty years or so. Which is especially ironic since Ray Kroc was the one who formed the franchise that trademarked the name. In '61 or '62 the McDonald brothers sold all rights to Ray.

Yep, if your name is McDonald and you try to sell hamburgers using your own name, you will almost certainly be sued into the ground by a company that has no relationship whatsoever to the McDonald clan but owns the trademark. Welkom to Amerika.

John

[ This Message was edited by: OutOfBreath on 2002-11-05 12:26 ]

Wandering_Whistler · Post by **Wandering_Whistler** » Tue Nov 05, 2002 11:27 am

On 2002-11-05 11:00, goesto11 wrote:

I think the main issue here is ethics. Was there someone who was trying, unfairly, to leverage someone else's name? I think here the answer is yes, so I would not support that business by purchasing from them.

I understand your position here John, and I post my own not to debate you on yours, but to give a different perspective.

When I got my first Chieftain whistle, it never even crossed my mind that it might have been made by the Chieftains, or even endorsed by them. I never even considered that another person might come to that conclusion.

On the other hand, the Walton's Guinness whistle is clearly using a liscensed brand. To me, this is pretty obvious, as there's a sticker of the Guinness' trademarked harp, and other information to help make the association in the purchaser's mind. This seems obvious that this is an attempt to "Irish-up" the whistle. I can see Phil Hardy perhaps choosing the Chieftain name for similar reasons. Or he may have chosen the name for totally unrelated reasons. I wasn't in his mind when he did so.

Should Phil have licensed the Cheiftain name? Perhaps. Perhaps not. I've never seen him claim that the whistles were made by or endorsed by the Chieftains. Likewise, I've just popped over to http://www.uspto.gov (us patent and trademark office). The <a href="http://tess.uspto.gov/bin/showfield?f=d ... >Chieftain trademark registration</a> clearly trademarks the words "The Chieftains" for performances and shows (ie: as a band..'entertainment services'), and not as makers of instruments (which would be some kind of manufatured good). They have another registration covering their recorded works. Additionally, there are 3 dozen other registrations (both 'live' and 'dead') for the word "Cheiftain" and/or "Chieftains", from everything from beer-making kits to rice products to fireman's gear. Is Phil's use of the single word 'Chieftain' close enough in name and genre to dilute 'The Chieftains'? I personally don't think so..but I'm neither a judge nor a lawyer.

I personally haven't seen any evidence that he has attempted to purposefully confuse anyone, and I don't think the name alone makes a primae facia case of unethical behavior. I have noticed that it's human nature for people to ascribe more sinister motives to the behavior of folks they don't like as opposed to those they do. I think Phil's use of the word is no worse than the thousands of cases of using similiarities to help brand a product.

[ This Message was edited by: Wandering_Whistler on 2002-11-05 17:56 ]

Wombat · Post by **Wombat** » Tue Nov 05, 2002 11:31 am

Right John, I was forgetting that. I think Joannie would be a bit more understanding somehow. I suppose what I really meant was a moral right since that was what was in question. I think we'd both agree that a McDonald ought to be able to use the name, wouldn't we?

E = Fb · Post by **E = Fb** » Tue Nov 05, 2002 12:30 pm

I haven't read all the comments here. Here's a slighly OT comment. We make comments about whistles. That can hurt some feelings...so be it. But before posting a message about persons or motives we should pause and consider the following: "What evidence can I present?" If it's just an opinion without evidence...keep it to yourself.
I remember reading something like this in a customer's office. It's not great literature, but the concept stuck in my head for 30 years:
The rational mind dwells on things
The great mind discusses ideas
The small mind talks about people

Bloomfield · Post by **Bloomfield** » Tue Nov 05, 2002 12:46 pm

E-flat: good point.

You other guys just crack me up. Did any of you read that article in the NYTimes Mag about a year back about his 13-year old kid giving free legal advice on the internet? He got the highest confidence & competence ratings (even AFTER he was outed) from the other surfers who wondered if Phil Hardy could shut them down if they started a band called "Kerry Pro".

Wandering_Whistler · Post by **Wandering_Whistler** » Tue Nov 05, 2002 1:31 pm

On 2002-11-05 13:46, Bloomfield wrote:
E-flat: good point.

You other guys just crack me up. Did any of you read that article in the NYTimes Mag about a year back about his 13-year old kid giving free legal advice on the internet? He got the highest confidence & competence ratings (even AFTER he was outed) from the other surfers who wondered if Phil Hardy could shut them down if they started a band called "Kerry Pro".

Don't believe I've heard that one, Bloomy. Got a link? A google search failed to turn anything up.

However interesting, I don't really see how the actions of someone's 13 year old kid have to do with the current discussion, though.

goesto11 · Post by **goesto11** » Tue Nov 05, 2002 1:48 pm

On 2002-11-05 12:27 Wandering_Whistler wrote:

When I got my first Chieftain whistle, it never even crossed my mind that it might have been made by the Chieftains, or even endorsed by them. I never even considered that another person might come to that conclusion.

I find it surprising that you didn't make that connection. It jumped out at me. I'm not saying that you didn't, I'm just surprised that you didn't. And I can't believe it surprised you that someone else made that connection. A whistle making having the same name as a worldwide Irish band? Who'd have thunk it?

Should Phil have licensed the Cheiftain name? Perhaps. Perhaps not. I've never seen him claim that the whistles were made by or endorsed by the Chieftains. Likewise, I've just popped over to http://www.uspto.gov (us patent and trademark office). The Chieftain trademark registration clearly trademarks the words "The Chieftains" for performances and shows (ie: as a band..'entertainment services'), and not as makers of instruments (which would be some kind of manufatured good). They have another registration covering their recorded works. Additionally, there are 3 dozen other registrations (both 'live' and 'dead') for the word "Cheiftain" and/or "Chieftains", from everything from beer-making kits to rice products to fireman's gear. Is Phil's use of the single word 'Chieftain' close enough in name and genre to dilute 'The Chieftains'? I personally don't think so..but I'm neither a judge nor a lawyer.
I personally haven't seen any evidence that he has attempted to purposefully confuse anyone, and I don't think the name alone makes a primae facia case of unethical behavior. I have noticed that it's human nature for people to ascribe more sinister motives to the bahavior of folks they don't like as opposed to those they do. I think Phil's use of the word is no worse than the thousands of cases of using similiarities to help brand a product.

Are you sure you're not a lawyer? You are using some pretty lawyerly words. Are you just trying to hide something from us to avoid abuse?

Wombat wrote:
I think we'd both agree that a McDonald ought to be able to use the name, wouldn't we?

Actually, I don't agree. I work in the area of intellectual property law, and branding is very important. If my last name were McDonald (it's not, but close), I would know that I could not open a restaraunt named McDonalds, because one already exists.

I also know that views on intellectual property vary depending upon where people live. I am a product of the American culture, which places different value on IP (patents, copyrights, trademarks, etc.) than other cultures.

E = Fb wrote:
I haven't read all the comments here. Here's a slighly OT comment. We make comments about whistles. That can hurt some feelings...so be it. But before posting a message about persons or motives we should pause and consider the following: "What evidence can I present?" If it's just an opinion without evidence...keep it to yourself.
I remember reading something like this in a customer's office. It's not great literature, but the concept stuck in my head for 30 years:
The rational mind dwells on things
The great mind discusses ideas
The small mind talks about people

I love platitudes like this. You present an opinion, about me, saying that you shouldn't post opinions about others. And what kind of evidence are you looking for? A comment from a maker that "Yes, I purposefully stole their name so that I could take economic advantage of it to their detriment"? I couldn't find any comments along those lines. Sometimes you have to look at the circumstances. Did you know that over 90% of all murder convictions are based on circumstantial evidence?

Bloomfield wrote:

E-flat: good point.

You other guys just crack me up. Did any of you read that article in the NYTimes Mag about a year back about his 13-year old kid giving free legal advice on the internet? He got the highest confidence & competence ratings (even AFTER he was outed) from the other surfers who wondered if Phil Hardy could shut them down if they started a band called "Kerry Pro".

Still trying to decipher this one.

John Mac

Bloomfield · Post by **Bloomfield** » Tue Nov 05, 2002 2:39 pm

On 2002-11-05 14:31, Wandering_Whistler wrote:
On 2002-11-05 13:46, Bloomfield wrote:
E-flat: good point.

You other guys just crack me up. Did any of you read that article in the NYTimes Mag about a year back about his 13-year old kid giving free legal advice on the internet? He got the highest confidence & competence ratings (even AFTER he was outed) from the other surfers who wondered if Phil Hardy could shut them down if they started a band called "Kerry Pro".
Don't believe I've heard that one, Bloomy. Got a link? A google search failed to turn anything up.

However interesting, I don't really see how the actions of someone's 13 year old kid have to do with the current discussion, though.

They didn't really ask about Phil and bandnames, of course. But lots of other stuff. I think it was an article about the internet and people's online personae. The kid was just a case study in it.

What does it have to do with the present discussion? Perhaps only that I am amazed at how this thread seems to go on and on with half-baked legal stuff that does very little to illuminate the ethical question (if there is an ethical question here). And no, I am not telling anyone to stop posting whatever they like to post.

The Weekenders · Post by **The Weekenders** » Tue Nov 05, 2002 2:43 pm

Way before my C&F days and real familiarity with IRTRAD, I saw Chieftains whistles in Lark in the Morning catalog.

I could swear that it said they were made for the Chieftains and I thot "Wow, they must be in tune and really nice" having been disappointed with the cheapos.

I'm sure that it didn't say that but my mind made the connection and reinforced the idea..

On purpose or not, its what I thought.

This thread brings up the nagging reality that in terms of consumer purchasing, most people are not that well informed when they buy things, so the power of suggestion and incorrect inference can be very profitable.

goesto11 · Post by **goesto11** » Tue Nov 05, 2002 2:46 pm

What does it have to do with the present discussion? Perhaps only that I am amazed at how this thread seems to go on and on with half-baked legal stuff that does very little to illuminate the ethical question (if there is an ethical question here). And no, I am not telling anyone to stop posting whatever they like to post.

Bloomfield,

Thanks for the illumination you provided.

John Mac

Cees · Post by **Cees** » Tue Nov 05, 2002 2:49 pm

On 2002-11-05 14:48, goesto11 wrote:
I find it surprising that you didn't make that connection. It jumped out at me. I'm not saying that you didn't, I'm just surprised that you didn't. And I can't believe it surprised you that someone else made that connection. A whistle making having the same name as a worldwide Irish band? Who'd have thunk it?
John Mac

Actually, my experience is the same as Greg's...I first learned about whistle makes/brands about a year ago, exhaustively reading Chiff & Fipple for the first time, and it never once occurred to me to associate Chieftain whistles with the band, The Chieftains. I was also surprised that someone thought they were connected--it had just never even occurred to me.

MacEachain · Post by **MacEachain** » Tue Nov 05, 2002 3:59 pm

I'll have to agree with Cees and Wandering Whistler on this. I did'nt make an association as I always associated "CHIEFTAIN" whistles with Low whistles, something I would'nt associate "THE CHIEFTAINS" with. That's just my perception. No-one can be faulted for making a connection between the two, what they can be accused of is failing to research the subject. I've never seen it stated or implied that Chieftain whistles are or were in any way connected to The Chieftains. If you check Phil Hardy's site kerrywhistles.com its quite clear who plays his instruments.

Cheers Mac