June 12, 2008
Battle over marketing 'Mile 0' continues
BY ANNE-MARGARET SWARY
Citizen Staff
KEY WEST — Arguments continued Wednesday over who has the right to sell goods bearing Key West's popular "Mile 0" road sign.
Attorneys for local businessman Yaron Wasserman have been trying to prove for the past 20 months that he has a valid trademark for "Mile 0" that prohibits other tourist shops from selling T-shirts, hats and other souvenirs with the emblem.
The actual green Mile Marker 0 sign at Whitehead and Fleming streets identifies the southernmost point of U.S. 1, the roadway that runs along the nation's East Coast all the way to Fort Kent, Maine.
Wasserman obtained federal and state trademarks for Mile 0 in 2003, but Fort Lauderdale attorney Frank Herrera, who is representing three local businesses Wasserman is suing for trademark infringement, argues that he should not have been allowed to trademark the wording and design of the sign.
Mile 0 is a "geographically descriptive" term, and therefore cannot be trademarked under federal law, Herrera contended during a hearing Wednesday morning in front of circuit Judge David Audlin.
One of Wasserman's attorneys, Hugh Morgan, argued that the Mile 0 sign is not "geographically descriptive" and therefore can be trademarked. Morgan said there are three requirements for the categorization, and the sign doesn't meet any of them — so Wasserman's trademark is valid.
First, the term or image must describe an actual geographic location.
"You say Mile 0 means Key West. I don't believe that's correct," said another attorney for Wasserman, Charles Hanor, a San Antonio lawyer who specializes in trademark law. " 'Key West' is a geographical description. 'Mile 0' is not."
Hanor also said there are Mile 0 signs in other towns across the nation where many other highways end. He held up a photo showing a family posing in front of a Mile 0 sign in Alaska.
In response, Herrera, the attorney for the businesses being sued, referred to a case in Atlanta in which a company couldn't trademark "ATL" because it was considered geographically descriptive, as it is a popular abbreviation for the city to the majority of people living in or visiting Atlanta.
"So folks in the Atlanta area and even beyond would recognize the ATL as being geographically descriptive," Herrera said. Similarly, the "relevant purchasing consumer" in Key West would associate Mile 0 with the island of Key West, making it also geographically descriptive, and therefore ineligible for a trademark, he argued.
The second and third requirements for the "geographically descriptive" label — negating a trademark — are that the goods must be produced in that region, and that region must be known for its manufacture or production of those goods.
Morgan, Wasserman's attorney, said the Mile 0 trademark doesn't fit the bill.
"T-shirts and baseball hats are not manufactured in Key West, and Key West is not known for the manufacture of T-shirts or baseball hats, like the Bordeaux region of France is known for Bordeaux wine, Idaho is known for potatoes and Detroit is known for cars," Morgan told The Citizen after the hearing.
Judge Audlin was expected to rule on the case, or decide if it would go to trial, but he said both sides needed more time to present their arguments.
Both parties now have 30 days to submit supplemental briefs further arguing their case. Audlin then will decide if additional oral arguments are necessary before his ruling.
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