Paul Weir is all fired up. Not just because he's the technical and promotional director of Flam Chan, Tucson's flame-throwing performance ensemble, but because, in his opinion, the multimillion-dollar Canadian troupe Cirque du Soleil is trying to douse one of his shows.
Actually, all Cirque du Soleil is demanding is that Flam Chen stop using the word "cirque" in the title of one of its acts. Whatever the magnitude of the problem, Weir thinks he's getting hosed by a corporation notorious for its trademark-protection bullying.
In late June, Weir received a letter from Monica A. Rivas, the intellectual-property litigation counsel for the Dream Merchant Company, which owns Cirque du Soleil. That means she devotes a fair number of billable hours to challenging other companies' attempts to trademark names that could be confused with "Cirque du Soleil," and to sending stern cease-and-desist warnings to organizations that may be infringing the Cirque du Soleil trademark.
Rivas, who would not return phone calls relating to this article, or a member of her staff discovered that buried several layers down in Flam Chen's Web site is a page describing one of the company's earliest shows, "Cirque Vania." The attorney fired off a letter stating, in part:
"Flam-Chen's use of the CIRQUE VANIA trademark in connection with entertainment services is likely to create confusion in the American public in that consumers will believe that your goods and services are those of Cirque du Soleil, or that your goods and services are offered with Cirque du Soleil's authorization. Consumers are likely to mistakenly believe that the CIRQUE VANIA show is a new production of CIRQUE DU SOLEIL. Your use of the CIRQUE VANIA mark also dilutes the famous CIRQUE DU SOLEIL mark."
Weir thought the allegation was asinine and responded by sending Rivas a joke letter declaring, "I will proceed to use the name Cirque in every other production that we create. We were thinking of a take-off on fast food theme, and naming a show 'McCirque.' In fact perhaps we will change our name to 'McCirque' and double the trouble.' Then Weir sent Cirque du Soleil mogul Guy Laliberté a money order for $18--what he calculates to be 3 percent of the net worth of the "Cirque Vania" show.
Weir acknowledges that Cirque du Soleil's attorneys may not see the humor in his response and haul him into court. But he believes this issue is worth a fight. "They're trying to own propriety rights to the word 'cirque' because there are a few yahoos in Iowa who might get confused," he says. "But it's a joke to come after us. We don't promote ourselves to be anything like Cirque du Soleil."
Strictly speaking, Dream Merchant has trademarked the full name "Cirque du Soleil," not the individual word "cirque," which is French for "circus." Trying to hoard all uses of such a common word would be like filing a trademark claim on a word like "amour."
The single word "cirque" has been trademarked several times, but in contexts having nothing to do with the circus. The trademark is held by a Utah corporation that makes an "external pad device for data input into a computer," by an individual in California who makes sunglasses, by a California company that makes teakettles, and another that makes sports goggles. Some of these holders have skirted the whole circus issue by persuading the U.S. Patent and Trademark Office that "cirque" is French for "circle."
Cirque du Soleil is now routinely challenging new trademark applications involving the word "cirque" and is going after nearly anyone outside its own staff who dares to use the word in public.
This may strike onlookers as an isolated example of corporate greed invading the linguistic sphere, but cease-and-desist letters like Rivas' are quite common and necessary, according to Tucson trademark attorney Peter Goldman.
"If we were to start selling hand-held computers and called them 'Pocket Blue,' the public might think we had some association with IBM, which is called 'Big Blue,' and IBM could say 'Pocket Blue' is confusingly similar to 'Big Blue,' and you've got to stop doing that," says Goldman. "If IBM does not do that, they're letting their rights in the mark lapse, and if you sit on your rights, if you do not enforce your rights, you lose them."
Noting that he is not familiar with the details of the Flam Chen case and could only address its broader issues, Goldman continued, "Cirque du Soleil has an obligation under the law to enforce its rights, because if they do not, then their rights become diminished and they are even faced with the possibility of having abandoned their rights in the mark. So then you and I could put on tutus and dance in Armory Park and call ourselves Cirque du Soleil, and that would be a serious diminishment of their mark.
"You ask yourself, why does a big company with so many resources go after these mom and pop cases? It has to, to enforce its rights and protect itself when a big problem comes along. There's really no good guy and no bad guy here."
Thus, for years, the Styrofoam company has sent friendly reminders to even the smallest newspapers that its name is trademarked and should always be capitalized. And, more dubiously, film director Spike Lee recently got an injunction temporarily prohibiting Viacom from renaming its male-oriented TNN cable channel "Spike TV." And, seeing what really does make it into court, people believed a hoax earlier this summer in which the notoriously litigious rock group Metallica was said to be suing a little-known Canadian band for trademark violation over the use of the chords E and F (in that order).
And so Cirque du Soleil, on questionable grounds, goes after Flam Chen so it can establish a history of trademark protection in more significant fights, as with its major competitor, Neil Goldberg's Cirque Ingénieux (French for "ingenious circus"), which frequently appears in Tucson. Ordinary people can sit back and enjoy that as a battle of the titans, but public sympathy almost always goes to the underdog when Cirque du Soleil pounces on a barely surviving underground troupe like Flam Chen or its pyrotechnic Seattle counterpart, Cirque de Flambé (supposedly French for "ring of fire").
About a year ago, Cirque du Soleil filed its opposition to Cirque de Flambé's proposed trademark, according to the Cirque de Flambé director who bills himself as Maque Da Vis' (supposedly French for "Mac Davis").
"The results are supposed to come in next month, and I think we're going to win," says Da Vis'. "But they could also still sue and make me put up a bunch of money getting a lawyer. We have $150 in our bank account, and Dream Merchant probably has $150 million. So what's the point of going after us?
"I feel it's really unjust; these laws are being used unfairly. They threaten everybody, then take a few people to trial and work them over. But I'm a fighter. Cirque du Soleil is going to have to prove financial loss due to us, and they can't. I've made it very clear that if they're gonna mess with me, I'm gonna mess with them. When they come to Seattle, we will picket, we will protest, and we will make a big, screamin' mess of their shows."
According to attorney Goldman, corporations and their lawyers generally try to avoid big public altercations.
"In spite of what folks say about lawyers," he says, "we prefer negotiated settlements, even though less money is spent. Most trademark or intellectual-property lawyers are really dedicated to providing the best resolution for their clients, and that's often the cheapest resolution. Our job is to keep our clients in business, not to put our clients in court."
But Flam Chen's Weir, like Cirque de Flambé's Maque Da Vis', vows to fight, even if that means representing himself in court; he figures that would save money and earn himself some underdog sympathy. Goldman, who is not involved either with Flam Chen or Cirque du Soleil, suspects that the easiest solution would be for Flam Chen simply to rename its 6-year-old show; then Cirque du Soleil would most likely go away.
"My feeling is that in all cases, whenever you can negotiate a solution you should, because negotiation is far better than litigation," he says. "In litigation, even the winner walks away pretty battered. Cirque du Soleil is going to look like the villain, even though it's in their rights to do this."