Sex, drugs and lobster rolls: A tale of trademarking

As Jillian Popplow packed away dozens of T-shirts emblazoned with the phrase “sex, drugs & lobster rolls,” she questioned what would become of the quirky tees.

The small business owner in Yarmouth, N.S., had just been sent a letter asking her to stop selling the shirts she designed because the phrase was trademarked.

“When we found out it was real, we didn't want to mess around as it's only my husband and I. So we couldn't really get lawyers involved and was it really worth it? So we pulled the product,” said Popplow, co-owner of The Lumberjack's Daughter, which sells antiques, art and home goods.

“I'm not even sure if we can give them away for free.… They're in a box and we’re kind of trying to figure out what the next step is. We're not actually sure.”

Popplow was surprised to discover the expression was the subject of a trademark application, as it’s one she considers fairly common in the Maritimes.

But the woman who is seeking the trademark for “sex drugs & lobster rolls” disagrees, saying the phrase is only common because of her business.

Nevertheless, the situation highlights the complexities and conflicts that can arise when expressions become the subject of intellectual property claims.

According to the federal Canadian Intellectual Property Office, a trademark is a symbol, phrase or logo that allows the public to identify the source of a particular product. Over time, trademarks come to stand for not only the actual goods or services provided, but also the reputation of the brand, the office said.

Nadyne Kasta, who describes herself on her website as an Ottawa-based artist, first applied for the trademark in 2021.

Kasta declined a request for an interview, but in a lengthy statement, she explained the phrase came from a friend, “and it simply didn't exist, certainly not publicly, before I put it on my shirts.”

“I created it. It originated with my shop,” wrote Kasta.

Kasta started her business, The Girl From Away, in 2014 in an old schoolhouse in North Milton, P.E.I., and started selling her “sex drugs & lobster rolls” shirts a year after.

The response to the shirts was far beyond what she expected, said Kasta, adding they have been called the “unofficial uniform of the Maritimes.”

“Over time, I expanded the phrase onto tote bags, stickers, magnets, and other products, and these items became a significant part of my business,” said Kasta, who moved her small operation online in 2015.

“I've spent years and a lot of time and energy promoting them. If sex, drugs and lobster rolls is now, as you say, ‘a common phrase,’ it's because of my shop and because of the thousands of customers who've supported and shared my work.”

Kasta acknowledged sending the letter to Popplow, and added that “she’s far from the only one.” She noted that once you register a trademark, you’re required to enforce it.

“That means constantly monitoring use and sending notices,” she said, adding it’s a “burden” that has taken much of her energy, time and money.

“Enforcement has become practically a job in itself, and it's by far my least favourite part of running this business.”

The French press effect

Kasta’s policing of the use of the phrase is a standard practice for trademark holders, explains Toronto-based lawyer Reagan Seidler.

In fact, it’s imperative.

“If they don't stop other people from using the phrase, they will lose the exclusive rights to that phrase,” said Seidler, a copyright and trademark lawyer.

Seidler pointed to the term French press, which was introduced by kitchenware company Bodum. The company had registered the trademark in Canada, but the Federal Court deemed it invalid in 2012 given it had become a common and widespread term for the coffee maker.

Although it was presented to Popplow in the letter as a done deal, Seidler said Kasta’s trademark is still in the process of being officially registered.

She was issued an approval of the trademark by the federal government, which means it does not object to it. The approval then opens a two-month window for others to oppose it.

If there are no objections, it will be marked as registered. If there are, the objections will be reviewed by the Trademarks Opposition Board, an independent tribunal, which will ultimately determine whether to deem the trademark successful or unsuccessful.

Kasta also once held a trademark for “sex drugs & lobster rolls” in the United States, but it expired last year as she dealt with some health issues, she said.

She’s not sure if she’ll reapply, given the challenges that come with enforcing it.

Matt Snow disputes Kasta’s claim that her business made the phrase popular.

His online clothing and accessories store, based in California, also sells a shirt embellished with “sex, drugs, and lobster rolls.”

“Parallel thought is a very real thing. Creative people do have similar thoughts. Sex, drugs and rock 'n' roll and sex, drugs and lobster rolls,” said Snow.

“In terms of the number of syllables, in terms of the ubiquity of sex, drugs and rock 'n' roll as a phrase since the '70s, it’s sort of an obvious pun.

“And so I don't know that it would be really possible to establish ownership of that pun because of its obviousness.”

Snow said he started selling his shirts in 2015 and was contacted by Kasta in 2017. His understanding of the laws in the U.S., based on the advice of his lawyer, was that an ornamental representation of a slogan could be copyrighted, but not the words.

“At least with our design, there was a little bit more going on graphically. There was actual lobster. There was a little bit more thought and intention going on in our use of the typography,” he said.

Snow said he paid an attorney to deal with the situation at the time and did not hear from Kasta again.

Popplow said she realizes she likely should have done her due diligence and searched the Canadian trademark database before creating her T-shirts, which would have brought up Kasta’s application.

But she didn’t because it’s a phrase she’s heard throughout the Maritimes. She even recalls seeing it written on the chalkboard of a restaurant in British Columbia when she was young.

"I think it's kind of a start to other problematic things. In the Maritimes, we call ourselves Maritimers. So can someone trademark that?” said Popplow, whose remaining 63 shirts are sitting in a box.

“I'm not sure where the line should be.”

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