Memorabilia store in Canada forced to change name

UPDATE "It's unfortunate to read the articles about Mr. Nicholson's store, as they do not tell the whole story", responded Van Colley, Darrell Waltrip's longtime Business Manager. "The truth is DW first came up with Boogity Boogity Boogity and then the name of the store appeared. "Mr. Nicholson only used Boogity as a result of DW's earlier use on FOX. In my opinion, it is not a coincidence that DW started his broadcasts with Boogity, Boogity, Boogity in March of 2002 and then 9 months later, with his business partner, Richard Poulin, that Mr. Nicholson incorporated a company called BOOGIDDY BOOGIDDY RACING INC on November 6, 2002. He then changed the corporate name to Boogity Boogity Boogity Racing Inc on March 3, 2003. That company was dissolved on July 25, 2008. Then the store operated under the name Boogity Sportswear. The shop went as far as applying for DW's trademark of Boogity, Boogity Boogity which was rejected in late 2007 by the Canadian Trademark Office. My point is there is no way Mr. Nicholson should be surprised about what has happened. It is odd that the shop filed for DW's trademark. Whether Mr. Nicholson is a small business owner or the owner of a large corporation is irrelevant to the matter. You simply can't take some one's legally trademarked intellectual property and attempt to profit from it. Common sense tells me that I can't simply throw up some golden arches in my front yard, hang a sign that says McDonalds on it and fire up my grill to attempt to sell some hamburgers simply because I want to. We appreciate Mr. Nicholson being a NASCAR fan and his selling of legally licensed NASCAR merchandise in his store. We also wish no ill will to Mr. Nicholson, despite his comment of wanting to "tear out DW's wind pipe." At the same time, I won't apologize for protecting DW's legal rights. We, like NASCAR, the drivers and teams in our sport fight this kind of thing all the time." Darrell Waltrip Motorsport

09/02/09 A New Brunswick businessman and long-time racing fan has been forced to change the name of his tiny memorabilia shop under the threat of a lawsuit by NASCAR legend Darrell Waltrip. Randy Nicholson, who has sold NASCAR merchandise in Woodstock since 2001, has been accused of infringing on a trademark that wasn't registered by Waltrip until four years after Nicholson's store was established. Borrowing from a catchphrase issued by the Fox Sports commentator at the start of every race, Nicholson initially called his business Boogity Boogity Racing, and then later changed the name to Boogity Sportswear. On Friday, he received a cease-and-desist letter from an Ontario law firm representing Waltrip, a former Winston Cup champion who says, "Boogity, boogity, boogity, let's go racin', boys" each time the green flag drops. Waltrip registered the catch phrase as a trademark in Canada on Oct. 31, 2005. "My first instinct was that I was going to fight (him), but I don't have the means,'' Nicholson said Tuesday as he stood behind the counter in his store, which also sells hockey, wrestling and ultimate fighting souvenirs. "I am in no position to fight Darrell Waltrip. He has deeper pockets than I do." Nicholson said he registered his business with the federal government in 2001, and paid more than $1,200 to cover the cost of a search that was conducted to ensure the name wasn't being used in Canada by anyone else. At one point, he also operated stores under the Boogity banner in Moncton and Saint John, but he never received a complaint until last week, when a sheriff delivered a letter from MBM, an intellectual property legal group in Ottawa, sent on Waltrip's behalf. "From a trademark point of view, he is infringing Darrell Waltrip's registered Canadian trademark,'' Scott Miller, the head of the litigation group at MBM, said Tuesday. "Taking intellectual property without permission is as reprehensible as taking anything else." Nicholson argues that he has never infringed on Waltrip's rights. He says he has never sold anything that carried Waltrip's trademark, and the few Boogity-related items he sold bore a logo that he developed on his own. Nicholson has until next Tuesday to wipe his shop clean of the word "boogity" and has already taken down his signs. Until he comes up with something better, he will call his business R&B Embroidery, to accentuate the fact that he does printing and embroidery and manufactures vinyl signs. Nicholson said it will cost him between $5,000 and $8,000 to register a new name, put up signs, change his business cards and letterhead, order new checkes, change the way his phone is listed, and set up a new website. Telegraph Journal

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