"They own, basically, the word 'Sonic,'" says Melissa Massie, who has owned the popular Sonic Burritos since 2003.
Massie and her fianc & eacute;, Brent Bozarth, were put on notice about six months ago when they received a letter from Sonic Drive-In's attorneys.
"It stated I no longer could use the name Sonic. Initially, I said, 'Bring it!'" Massie says.
After all, Sonic Burritos has been here since 1995. It's not a copycat drive-in with carhops and intercoms.
"It's hard to know who is really first when you just look casually at a situation," says Randy Gregory, the rare Spokane attorney familiar with trademark law.
Massie found an attorney in Washington, D.C., who specializes in trademark law and began to modify her stand.
"The attorney said we had a good chance of winning locally, but then they would sue and sue and sue," she says.
Eventually the suit would reach federal court, where Sonic Drive-In would pull out its trump card: the federally registered trademark of the corporate name since 1964.
But if one place sells burgers and another burritos, can't we just get along?
"There is a multi-faceted test," says Gregory. "There are 12 different factors on channels of trade, goods and services. The basic legal test is confusion or the likelihood of confusion."
A common word can be protected by trademark, Gregory says, citing Apple Computer. The computer company has been involved in several trademark fights over 25 years with Apple Corps (a holding company created by the Beatles to run Apple Records), losing several, but last month won a landmark ruling clearing it to enter the music business with its iTunes Music Store. The legal fight has cost millions, which a business like Sonic Burritos doesn't have.
So the deep-pocket gang has backed Massie and Bozarth into the same corner where countless small business owners (including, weirdly, the original owners of Sonic Drive-In) have gone before. Do you risk a five- or six-digit court fight or cough up an estimated $20,000 to change your name?
The tough economics of running a small restaurant often lead to the latter choice, and Massie and Bozarth have scheduled raffles and other events to raise enough money to change Sonic's name this summer.
Sonic Drive-In chose its name in 1959 when owners Troy Smith and Charlie Pappe tried to register the original name, Top Hat Drive-In, only to find it was already copyrighted.
The irony isn't lost on Massie. "My argument is everybody starts out as the little guy. It looks like they forgot," she says.
They didn't forget. Since 1995, Sonic Drive-In has been owned and run by a lawyer, CEO Cliff Hudson. Brand awareness is big and guarded with vigilance. (The company even has a legal statement about the ins and outs of reading its Web site that runs to nearly 1,300 words.) The 3,000-franchise giant, worth an estimated $2 billion, doesn't hesitate about stepping on perceived threats to brand identity.
Recent MySpace postings show that loyal Sonic Burritos customers are taking it hard:
"Can I just say that the name change makes me want to punch corporate America in the face all night long? Lemme know if there is anything I can do to help!" (This was signed by a woman who enjoys roller derby.)
"People are wanting us to fight Sonic Drive-In. I've been fighting for six months and I don't want to fight a losing battle," Massie says.
