By David Hejmanowski
Case Study
“What I tell any high school kid is, ‘Take business classes.’ I don’t care what else you’re gonna do. If you’re gonna do art or anything — take business classes.”
– Axl Rose, Guns N’ Roses founder
“This is an attempt to run up costs and burn us out. Absolutely no one is confused.”
– David L. Clark, attorney for Texas Guns and Roses
When I say “Guns N’ Roses,” chances are pretty good that you think of Axl Rose, Slash and “Sweet Child O’ Mine.” Chances are also pretty good that you don’t think of running down to Houston, Texas, or jumping onto the web to buy actual guns and actual roses. But the possibility of that confusion has led to a federal trademark infringement lawsuit in Los Angeles, California.
The band “Guns N’ Roses” (using a capital “N” in place of the word “and”) was formed in March of 1985 when Tracii Guns’ band “L.A. Guns” and Axl Rose’s group “Hollywood Rose” came together and merged their names. Two years later, the band’s first album, “Appetite for Destruction,” produced the Top 10 hit “Welcome to the Jungle,” and the No. 1 hit “Sweet Child O’ Mine.” The group has gone through quiet periods, lineup changes, and a 2016 reunion, and is now about to embark on a world tour from June to October.
That tour doesn’t have any stops in Ohio, but it does include a stop in Houston, Texas, home of “Texas Guns and Roses,” which is neither a band, nor affiliated in any way with the famous musical group. What it is, both through a physical storefront and online, is a shop that sells actual guns and actual roses (and ammunition, gun cases, knives, etc.). And when the band discovered, in 2019, that the gun shop existed, legal sparks began to fly.
For more than 35 years, the band has held trademark protection on the name “Guns N’ Roses,” in order to prevent others from profiting off of the name or stealing it to sell their own music. They also hold a trademark on their typeface logo and previous held marks pertaining to various tours and album logos. In total, there are 17 registered trademarks under their name. Texas Guns and Roses has a typed logo that uses the full word “and,” and the Texas lone star. They registered trademark protection on the store name in 2016.
As a first step toward trademark protection, the band sent a “cease and desist” letter in February of 2020, demanding that the store stop using the name. When the store failed to respond, they sent a second letter a few months later. Seeing that they were getting nowhere with that tactic, the band tried a different route. They appealed to the federal Trademark Trial and Appeal Board asking them to cancel the 2016 trademark registration for the gun store.
Finally, losing patience, lawyers for the band have now filed their lawsuit asking not only for the court to find that the store’s name infringes on band’s rights, but also asking for monetary damages and attorney’s fees — both of which could be substantial. The lawsuit also points out that the store only sells roses online, barely offers them at all, and isn’t registered as a flower shop.
If the band is decades older and filed their trademark first, what chance does the store have? Well, first, they can claim that “Guns N’ Roses” is different than “Guns and Roses,” and certainly different from “Texas Guns and Roses.” Second, they can claim that it is perfectly possible for the two trademarks to co-exist, with one in the entertainment industry and the other commercial.
Finally, and most importantly, they have claimed that there simply is no risk of confusion among the general public. That is to say that no one is going to a gun shop in Houston expecting to see a rousing performance of “Knocking on Heaven’s Door,” and no one is going to pay $300 for a VIP ticket to Hyde Park in London expecting to buy a Glock 19. Consumers, they will argue, are smart enough to tell the difference. And if there is no risk for confusion, then there’s no trademark violation.
Federal civil lawsuits are not known for their swift resolution, and it is entirely possible that the matter will be settled amicably between the parties. In the mean time, you can still buy your yellow roses from a Texas gun store, and there are lots of tickets available to see Axl and Slash in Lexington, Kentucky, in September.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.
