IT'S EASY TO GET the mistaken impression that a place doing business under a certain name is owned and operated by people with that name. More and more that's not the case. I just noticed, for instance, that Brackman Bros. Bagel Bakeries, the Salt Lake-based specialty bakery known for its wide array of flavored bagels, has changed its name.
As of yesterday, it is known as Einste!n Bros. Bagels.So I thought to myself, "You mean that Brackman Bros. sold out to Einstein Bros.? Or were both names just made up to get attention in the marketplace?" If you said the latter, you got it right. Neither team of brothers actually exists in real life. Brackman Bros. was originally chosen because of its alliteration, and now Einstein is considered a more marketable name.
In fact, Einstein is all the rage. There have been several recent books on Einstein, and you see his name in catalogs, movies, TV shows and on T-shirts and calendars. (I'm looking for a 1996 Einstein calendar right now to replace my 1995 Einstein calendar.)
It's still a pretty tricky business, though. The Brackmans, I mean the Einsteins - whoever - say the company has no connection to the estate of the late physicist, Albert Einstein. But they have not entered into a licensing arrangement with Einstein's heirs, either.
Gary Gerdeman, a public affairs executive with Einstein Bagels in Golden, Colo., told me the company did "consumer research with a wide variety of names, and we found that the name Einstein has real warmth - and it's memorable."
I was skeptical that the name could have warmth, but I said, "It's memorable because of ALBERT Einstein, isn't it?"
"Not at all," he insisted.
Besides, Gerdemann said, his company's substitution of an exclamation point for the second i, as in "Einste!n," and the use of "Brothers" protects the company from trademark problems.
Not so, according to Roger Richman, owner of the Roger Richman Agency in Beverly Hills. He has 45 clients, including the families or estates of deceased celebrities such as Audrey Hepburn, the Marx Brothers, the Wright Brothers, Sigmund Freud, Steve McQueen and Mae West.
And, oh yeah - Albert Einstein. Richman said that anyone who uses the name - Albert, Einstein, Albert Einstein - or any part of his "persona," such as his photo, signature, graphics or even his famous theory, e=mc2, must enter into licensing arrangements with him. Currently, he is pursuing legal action in 60 cases involving the violation of the Einstein name alone.
"It is illegal," he said, "for someone to use Einstein's persona for any commercial purpose, including advertising, merchandising, promotion or services without my client's permission."
Interestingly enough, not all lawyers agree. I asked Berne Broadbent, a Salt Lake patent attorney, if Richman's approach is correct. He said the use of the name Einstein - without Albert - would not require permission or licensing. "It's hard for me to imagine that anyone would think the Einstein bagel company was connected with Albert Einstein."
Grant Foster, also a local patent attorney, said most people may think of Albert when they hear the name Einstein, "but from a trademark standpoint, you can take a name that is well known in one environment and use it in another environment, providing there is not a likelihood of confusion. There is nothing inherently wrong with using the name Einstein for an eating establishment."
Foster also suggested Richman "might have a cause of action for a violation of Einstein's right of publicity." In Utah, he said, "you can enforce the right of publicity post mortem."
My own opinion is that whatever the legal complications, Richman's determination would make me think twice about naming my next business after Einstein. I might just bag the consumer surveys and use my own name. It might be dull, but it would also be safe.