'Survivor' Term Comes Under Fire

[Bill Pritchard]

Did anyone read the editorial in the newest issue of “Hemmings Muscle Machines” magazine? It seems the ‘Bloomington Gold’ Corvette folks (aka Mecum Auctions) are whining about other peoples use of the term ‘Survivor’ as it applies to collector automobiles. In short, Hemmings received a threatening letter from Mecum’s law firm and was forced to go thru all their sale ads post haste and exclude the word ‘Survivor’ from any of them. While I agree that ‘Survivor’ is a much abused and overused term, Mecum is taking it too far the other way. I suppose collector car websites such as this one can be expecting notification in the near future http://www.yenko.net/ubbthreads/images/graemlins/bs.gif

[firstgenaddict]

The term "Survivor" has become a generic term for an unrestored / original car. It seems as though they have waited a little too long to defend their brand. If it was trademarked they would have had to rigorously defend their brand/trademark or else they lose it. Styrofoam was a brand/trademark for the generic expanded polystyrene. It was lost because the company did not defend it when others used in the generic.

[Bill Pritchard]

[ QUOTE ]
It seems as though they have waited a little too long to defend their brand. If it was trademarked they would have had to rigorously defend their brand/trademark or else they lose it.

[/ QUOTE ]

Better read the editorial. Bloomington Gold registered the term "Survivor" with the United States Patent Office in 1990. Their law firm is taking the position that anyone using this term on any collector car is infringing on BG's property http://www.yenko.net/ubbthreads/images/graemlins/bs.gif

[Mr70]

Who's next,CBS & Mark Burnett? http://www.yenko.net/ubbthreads/images/graemlins/bs.gif

[70 copo]

Yipes, I guess no old cars on the TV show "Survivor" Right
http://www.yenko.net/ubbthreads/images/graemlins/bs.gif

Next someone will get a patent on the words "restored supercar"..... http://www.yenko.net/ubbthreads/images/graemlins/haha.gif

Suing is one thing winning is something else. I am sure that they have a claim to the exact term "Survivor" as applied to a Corvette via the BG definition of a "survivor" as patiented.

Safe to say that currently they are in dissagreement thus here comes the lawyers correct? It will be neat to see this one play out.

Example: Say I place an ad for my car for sale as a
"survivor" of long storage, untouched, all original with low miles and all original parts. Does BG have a leg to stand on here? To me it depends "how" the term "survivor" is used. Ill bet that a judge in court will not understand this and will throw the case out, or rule that they do own the term but only as applied to Corvettes sold for a premium as due to "Survivor certification" as patented and awarded by BG.

This would be consistant with any reasonable misrepresentation of a trademark by anyone for monitary gain -ie use of the "Gold Spinner" certification/name to falsely sell a car for more money. No I did not read the story, but trying to trademark a word in the english language and then to try to restrict its use beyond a simple trademark infringement looks like a clear violation of the 1st Ammendment (freedom of speech) of these great United States. http://www.yenko.net/ubbthreads/images/graemlins/flag.gif Give me a ring side seat!!

[toner]

Call them "a survived" car from now on. http://www.yenko.net/ubbthreads/images/graemlins/wink.gif

[Charley Lillard]

In defense of Dana Mecum. I have met him and he seems like a nice guy to me. It might be something as simple as competing with NCRS. Bloomington has their survivor class and they have been doing it so long it has brought meaning to the term and if I owned the company I might trademark the term also and apparently the patent office agreed with them. Going after Hemmings seems kinda silly but I'm sure there is more to this story. Does Mecum own Bloomington or just do the auctions as part of it ? http://www.yenko.net/ubbthreads/images/graemlins/scholar.gif http://www.yenko.net/ubbthreads/images/graemlins/scholar.gif

[Zedder]

While I think it's a shame that it has come to this, I will be glad to see the term "survivor" used more in line with what Bloomingtom meant when they coined the term with respect to Corvettes. Personally, I'm sick of hearing about "Survivor" cars that have nothing more than "most" of their original paint - otherwise they have been totally "fluffed", "detailed" and "restored". I love truly unrestored cars and think the term "survivor" should be used only for those that are truly "unrestored" http://www.yenko.net/ubbthreads/images/graemlins/worship.gif

[DaJudge]

I totally agree with you Zedder http://www.yenko.net/ubbthreads/images/graemlins/flag.gif http://www.yenko.net/ubbthreads/images/graemlins/biggthumpup.gif

[JoeG]

Using the phrase Bloomington Survivor or Bloomington Gold Survivor should be enough for them --since their organization is used in the phrase, which would be easily recognizable-- If I Ran an auction --JOE SMOE'S SURVIVOR CARS---I think people would be able to see the difference------------------------Or change their name to Survivor Gold-----Then give them their patent-----------

[Steve Shauger]

The name of our survivor certification program for the Camaro is Vintage Camaro rather than survivor because of the bloomington groups objection to anyone else using the term survivor.I believe they trademarked the term.

Vintage Camaro was established to provide the appropriate status, recognition and appreciation of the unrestored Camaro.

Most cars that are 30 plus years old show their age and have been restored to some level. Very few are true time capsules. However at this years Camaro Nationals @ Carlisle, Vintage Camaro was treated to several of the best survivor status cars, such as a Red 1969 RS/SSL78 with 12k miles, White 1969RS/SS L48 with 14 k miles to name a few. One of the reasons most original cars are fluffed and buffed in the past was because no one recognized their status as valuable benchmark cars. Instead they were judged against restored cars, so owners fluffed and buffed them to compete(In the above statement I am referring to the Camaro arena). We offer full certifications and partial certification for cars that may have been restored in one or two specific areas.

And yes Mark the term is overly used.


Steve Shauger
Vintage Camaro

[ssl78]

Charlie my understandig is Dana Mecum Bought The whole Bloomington Gold Name. He is able to do whatever he wants with it. That is why it was moved to St Charles IL.

[moparts]

Can't use the word survivor in describing your car......what's next take the word God out of the pledge? http://www.yenko.net/ubbthreads/images/graemlins/flag.gif (wait they are trying to do that)...bad example....take our guns away? http://www.yenko.net/ubbthreads/images/graemlins/flag.gif (wait they are trying to do that too)....another bad example.....anyway you get my point.....so who is going to be the survivor moderator on this site? http://www.yenko.net/ubbthreads/images/graemlins/laugh.gif

[Belair62]

Maybe if you don't capitalize the word it's not patented !! http://www.yenko.net/ubbthreads/images/graemlins/haha.gif http://www.yenko.net/ubbthreads/images/graemlins/haha.gif

[firstgenaddict]

Let's just call it Survivour with the accent mark.
Or Supervivor for the survivor supercar.
I believe that like I said before they have waited too long to defend their trademark. Because Bloomington did not go after everyone (did they go after anyone?) in the past and defend it, I do not believe that they have a case. I am not a lawyer but did study some trademark and patent law.
If they would have coined a new word or phrase such as "BG survivor" or "Gold Survivor" or Bloomington Survivor I could see the infringment but come on.
Just write the ad as
"69 Yenko 15,000 miles all original paint and interior has survived untouched."
Then it seems as though they really have no case.

[njsteve]

How about "rovivrus" (survivor spelled backwards). but seriously, many of the moparphiles out there remember the mid-80s when Chrysler slammed down on anyone using the term "mopar" anywhere in anything. At the time most people thought "mopar" was a slang term but it was actually the original parts division name (like GM's Delco) of Chrysler "MOtor PARts." They went way overboard in their legal attacks and the hobby struck back furiously with publicized boycots of new vehicles and some very innovative other methods, including t-shirts depicting Chrylser's Gen Counsel with a giant screwdriver, screwing a roadrunner to the wall. Due to the backlash of thier own customer base, they eventually backed off of their zero tolerence policy due to all of the bad publicity. When it comes to trademarks, a company has to vigorously protect the mark or it becomes part of the public domain, like "Jeep" and "Kleenex" and they lose their rights to it.

[mrrec]

Words cannot be patented. However, they can be protected and "owned" for a specific use by obtaining a trademark. The trademark has to be used in interstate commerce. Therefore you cannot trademark a term just for kicks.

There are approximately 50 different trademarks registered for "survivor". They apply for a variety of items including a Timex watch, tub caulk, etc.

Bloomington's trademark for Survivor is registered as
"Authenticating certain automobiles".

This is a real can of worms as this is very broad. What certain automobiles? This broad swipe should never have been allowed (but the patent attorney did good - that's their goal: broad!)

It is unlikely we, as individuals, will be served for using "survivor" in an internet ad as a description of a car. However, the Hemmings notice is probably the tip of the iceburg and I'm sure all of the major ad venues will get a letter.

I don't think it is a big deal. Misuse of these words has been a pet peeve of mine for years. "Original" has been misused for years as has "survivor". And yes, describing your original (never painted, detailed, etc.) car as "survived" is AOK.

By the way, for those of us who really know and appreciate what a truly original car is, you might be surprised at the very few cars that really are untouched originals and have SURVIVED. http://www.yenko.net/ubbthreads/images/graemlins/scholar.gif

Dave

[BUIZILLA]

I am going to use the word *survivor*, anytime I want to. You see, we are ALL survivors, or we wouldn't be here today... going after Hemmings was a chicken sh!t move. Even more crappy, was Hemmings immediate bow down. Hemmings transcribes the ad entry for their customer, they don't make up those ad's, and terminology that people send in. It's no different than me placing an ad in my local newspaper. For Hemmings to reduce the ad language, is plainly censorship to me. BG will have to go after EVERY media source on the planet, including newspapers, magazines, radio, TV, yada-yada that uses the word. The for sale ad's do NOT reflect an association or allegiance that competes with BG, it states what the seller believes to be true. There is NO law that says you can't state what you believe to be true. If you say that your car rivals a BG survivor status, then you might have a problem. But, if I advertise my used weed-eater as a *survivor* in the bargain trader, is that illegal use of the term? I don't think so...
JH http://www.yenko.net/ubbthreads/images/graemlins/no.gif

[Jeff H]

Time to go out and patent "matching numbers". Then I can charge anyone that wants to use the term. This really is getting ridiculous in this country. Barry Bonds has his name protected so ESPN can't use it, the "Super Bowl" is protected so all the ads call it the "Big Game". Donald Trump and "you're fired".

[Pantera]

I have been setting here reading all the posts so far about this and I am furious. http://www.yenko.net/ubbthreads/images/graemlins/confused.gif

I was not aware that their copyrite of the term "Bloomington Gold Survivor" entitled them to the exclusive right to the generic term "Survivor" when applied to any collector car.
http://www.yenko.net/ubbthreads/images/graemlins/bs.gif That term has been used freely in the hobby almost as long as muscle cars have been collected.

A "Survivor Car" should be a phrase that can be used by anyone that wants to use it. Screw Bloomington if they sue someone over the use of this I hope everybody in the "Collector car hobby" all sign up to testify against them. That term was coined long ago. It was first used more by those in the NCRS and Bloomington was just one stop on their show circut. I will be one that will be the first to sign up against them.

I also hope that everyone in the hobby will boycott the bastards if they think they own the entire english language.
I for one will boycott them when the day that my my Motion vettes and especially my "day 2 Survior" 60,000 mi '65 Vette is finally restored and I start to show it. If they want to control the hobby like that I predict that it could backfire on them.

I think they are oversteping themselves. Since 1990 they have not vigorsly defended their copyrite of the term so they should be limited to only the exclusive use of "Bloomington Survivor" or "Bloomington Gold Survivor" period. They are oversteping their right to the term "Surivor car" and they could be in danger of loosing it.


In fact I predict that they would loose in a court battle over the use of the term. I hate to see the auction company backing down as that just gives Mechams lawyers encouragment to go after everyone in the industry. I hope that this forum will not be the ones that have to suffer because of this.

Dammm I am really pissed.... It is a good thing that I don't have a dog or I might take out my anger over this on him.

(climing down off soapbox)

Thanks all,
Pantera

Perhaps this forum should copyrite the term "day 2 survivor" before they try to stop us from using it too.

[firstgenaddict]

Exactly mrrec. Whenever I see the term survivor used in a car ad I will look to see the car. Most of the time it is nowhere close to being a survivor. It is a street machine that has been painted with flames and chromed out engine.

[firstgenaddict]

Here is what the LAW says
Seems like it just may apply here.

§14 (15 U.S.C. §1064). Cancellation
(3) At any time if the registered mark becomes the generic name for the goods or services, or a portion thereof, for which it is registered, or is functional, or has been abandoned, or its registration was obtained fraudulently or contrary to the provisions of section 4 or of subsection (a), (b), or (c) of section 2 for a registration under this Act, or contrary to similar prohibitory provisions of such said prior Acts for a registration under such Acts, or if the registered mark is being used by, or with the permission of, the registrant so as to misrepresent the source of the goods or services on or in connection with which the mark is used. If the registered mark becomes the generic name for less than all of the goods or services for which it is registered, a petition to cancel the registration for only those goods or services may be filed. A registered mark shall not be deemed to be the generic name of goods or services solely because such mark is also used as a name of or to identify a unique product or service. The primary significance of the registered mark to the relevant public rather than purchaser motivation shall be the test for determining whether the registered mark has become the generic name of goods or services on or in connection with which it has been used.
(5) At any time in the case of a certification mark on the ground that the registrant (A) does not control, or is not able legitimately to exercise control over, the use of such mark, or (B) engages in the production or marketing of any goods or services to which the certification mark is applied, or (C) permits the use of the certification mark for purposes other than to certify, or (D) discriminately refuses to certify or to continue to certify the goods or services of any person who maintains the standards or conditions which such mark certifies:

Abandonment of mark. A mark shall be deemed to be “abandoned” if either of the following occurs:
(1) When its use has been discontinued with intent not to resume such use. Intent not to resume may be inferred from circumstances. Nonuse for 3 consecutive years shall be prima facie evidence of abandonment. “Use” of a mark means the bona fide use of such mark made in the ordinary course of trade, and not made merely to reserve a right in a mark.
(2) When any course of conduct of the owner, including acts of omission as well as commission, causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark. Purchaser motivation shall not be a test for determining abandonment under this paragraph.

[70 copo]

http://www.yenko.net/ubbthreads/images/graemlins/flag.gif http://www.yenko.net/ubbthreads/images/graemlins/flag.gif http://www.yenko.net/ubbthreads/images/graemlins/flag.gif http://www.yenko.net/ubbthreads/images/graemlins/flag.gif http://www.yenko.net/ubbthreads/images/graemlins/beers.gif

[JoeG]

I luv reading Legal Documents---Gives me an excuse to Drink---------------Good facts http://www.yenko.net/ubbthreads/images/graemlins/biggthumpup.gif---At this point in time of everything being politically correct, we should all be thankful the Office of Records didn't allow a "Public Book Burning"--The "True Survivors" are the people and the cars that keep the Hobby going/surviving --so the Survivor Car, True Survivor Car, Benchmark Survivor Car, Vintage Survivor Car, Day 2 Survivor Car, Original Survivor Car on and on,--- Belongs to the "Hobby" ------------- http://www.yenko.net/ubbthreads/images/graemlins/3gears.gif

[NCGuy68]

Gents,

Who cares what others 'name' any certain vehicle. The car should stand on its own merits with or without documentation. Do your homework and know what your looking for!

Frivolous terms like 'Gold', 'Survivor' and 'Original' mean nothing in print. You need to drive, smell and feel the car before making any decisions to purchase.

[JoeG]

Spoken like a true "Survivor" Craig----------- http://www.yenko.net/ubbthreads/images/graemlins/3gears.gif

[firstgenaddict]

I agree most of the time the term "Survivor" is grossly misused but no one should have the right to say that you can not describe your own car with the term.

[DaJudge]

Hemmings speaks out about this on page 42 of the September issue. I agree with the writer of the editorial that the term " Survivor " is grossly overused but no one should claim the word survivor to be their own. I could see Bloomington's point if people described a vehicle as meeting Bloomington Gold Survivor criteria but I have never seen that. There are other makes and models out there that meet survivor criteria. The writer asks for everyones thoughts and suggestions and will forward them to Bloomington Gold as proof they are heading down the wrong path. The address is Survivors c/o Hemmings Motor News, Bennington Vermont, 05201 or e-mail [email protected]

[Ozark]

What exactly makes a car a "survivor"? What is the criteria? Must it have original tires? Must it never have been wrecked and refinished? Example: Car had a minor fender bender 2 months after it left the dealer. Dealer repairs damage. Could this car ever be a survivor? Must hose clamps, hoses, battery, belts, plugs, plug wires, brake shoes/pads be original to the car the be a survivor?
I imagine everyone has their own opinion of what a survivor is. IMHO everything would have to be original to the car except fluid and filters to be a survivor. http://www.yenko.net/ubbthreads/images/graemlins/dunno.gif

[firstgenaddict]

There are percentages that must be original. Not sure of the percentages but it would go something like this. 90% of the paint must be original.

[Zedder]

Actually, the car must be at least 50% unrestored in 3 of 4 categories - interior, exterior, chasis and mechanical.