What Happens When a Roadside Giant Takes on a Small-Town Teddy Bear?

Podcast: No Infringement Intended
Episode: What Happens When a Roadside Giant Takes on a Small-Town Teddy Bear?
Hosts: Rusty Close and Austin Padgett
Recorded: October 6, 2026
Aired: October 27, 2026

Austin Padgett (00:14):
Come one and come all. It’s time for gavels and gravy again. Welcome to No Infringement Intended, an intellectual property podcast of our law firm, Troutman Pepper Locke, hosted by the aptly named bad boys of intellectual property, Rusty Close and me, Austin Padgett.

Well, in today’s episode, we’ve got beavers, we’ve got a Labrador named Buck, we’ve got a $400,000 check, and we’ve got an old toothpaste commercial. We’ve also got a kid’s drawing of a moose, so stick around. All of that right after these messages.

Welcome back, listeners. So glad you’re here for today’s episode. As we get started, make sure you’re subscribed and then smash those five stars for your boys while you’re at it. Let’s get into the mailbag real quick. It’s been a minute since we’ve visited there. A friend of the pod, Robert, writes in and says, “Rusty, on a recent episode, you mentioned that you fire up yacht rock at home on the weekends. What are your go-to channels and playlists?”

Rusty Close (01:11):
It’s a good question. I appreciate that, Robert. Sirius has a good yacht rock station that I think is worth checking out if you’re into that genre, which I know we both are. What I like, though, is Pandora, where you can feed it an initial song and then it will build out a playlist for you based on your thumbs up and thumbs down, so it gets a little more tailored directly to your taste. Now, the problem there is it absolutely drives my wife crazy that I would listen to Pandora, because there are ads and we’re already paying for SiriusXM, so I have to do that one when she’s not around, lest I’m going to get, “How can we do this? Why are we listening to Pandora? These ads are driving me crazy.”

Austin Padgett (01:55):
I love it. Any other channels on the Sirius that you listen to? I just got it, because I have a relatively new truck, so I’m still riding my free packet.

Rusty Close (02:01):
Yeah, that’s smart. The Pearl Jam station obviously is a good one.

Austin Padgett (02:03):
Okay.

Rusty Close (02:05):
There’s an Outlaw Country one that I like.

Austin Padgett (02:08):
That one’s good. I like the Outlaw.

Rusty Close (02:10):
Yeah. Lithium, which is, I think, early ’90s alternative rock kind of station, is pretty good. All of those. From time to time, they’ll come up with an individual artist station that I’m not always sure are permanent. I know there has been a Tom Petty station. I’m not sure if it’s a permanent station, which is good.

Austin Padgett (02:26):
It’s still on there, for what it’s worth.

Rusty Close (02:27):
Okay. Yeah.

Austin Padgett (02:28):
The Chris Stapleton station’s really good too.

Rusty Close (02:30):
That’s a good one. Yeah, yeah, yeah.

Austin Padgett (02:32):
There’s one, you have to kind of dig deep for this one. I forget, it’s way up in the numbers, and it’s not on any of the easy menus, but it’s called Americana.

Rusty Close (02:39):
Oh, yeah, that one’s good.

Austin Padgett (02:40):
I like that channel a lot.

Rusty Close (02:41):
Yeah, for sure. There’s some good ones.

Austin Padgett (02:43):
I listen to that one a ton.

Rusty Close (02:44):
The problem is, if I’m in the car, I’m usually listening to podcasts. When I’m listening to tunes is more like when I’m at home or if the family’s around, then we’ll listen to music. They don’t care to listen to my podcasts.

Austin Padgett (02:55):
We’ll do podcasts next time. Maybe somebody will ask about that. Hint, hint.

Rusty Close (02:57):
That’s right.

Austin Padgett (02:59):
Send in those notes with the questions. We may have some perks coming. We’re still working out the final piece of that, but we may be incentivizing folks to send in questions.

Rusty Close (03:08):
We’re coming for you, Polar.

Austin Padgett (03:10):
Absolutely. I guess I’ve told you about my family shared playlist at some point in time where I establish dominance over my children by putting like 800 songs on it.

Rusty Close (03:20):
Yeah. Many hours long playlist.

Austin Padgett (03:22):
They get so excited, because my music dominates it so hard that when one of their songs comes on, a huge smile comes across their face, because they feel like they’ve won something.

Rusty Close (03:27):
Tidy victory, sure.

Austin Padgett (03:32):
Exactly. It’s so huge. What do you guys listen to on the road trip? You’re not crushing your podcast and you’ve got to balance out how much Pearl Jam you can put into the kids’ environment.

Rusty Close (03:43):
Yes. Which is zero.

Austin Padgett (03:44):
Right.

Rusty Close (03:45):
Generally, when we’re on a road trip, Stacey’s controlling the playlists.

Austin Padgett (03:48):
Oh, interesting. Okay.

Rusty Close (03:50):
I’m 100% eyes on the road. I don’t get to fiddle with the radio, playlists, any of that stuff. That’s totally in her hands. Typically, it depends on who we’re trying to placate at the time. If we’re needing the kids and we’re trying to keep them off of their devices, then there might be some sort of Disney or Hamilton-themed playlist. If it’s something for mine and Stacey’s mutual listening, then it usually starts off with Nathaniel Rateliff and it sort of spins out from there.

Austin Padgett (04:20):
Oh, interesting. Yeah, yeah.

Rusty Close (04:21):
It’s not really a playlist, but I think on Sirius you can pick artist stations, kind of like on Pandora. It’s just not as curated. If she feels like I’m needing a little pick-me-up, she’ll go to the Jason Isbell station and then we’ll go from there. I can tell when she’s thinking, okay, he needs a little boost here, because she’ll switch it over to some Jason.

Austin Padgett (04:44):
She’s managing the moods of everyone.

Rusty Close (04:46):
100%. Yes. Using the music.

Austin Padgett (04:48):
David playing the harp for Saul or something like that. I love it. Oh, man. Well, this past summer, we had the World Cup. Did you watch Freddy at all online? Did you hear about this phenomenon of Freddy? I think he was German.

Rusty Close (05:01):
I paid a lot more attention to the Scottish and the Dutch fans that were…

Austin Padgett (05:06):
Oh, drinking out cities.

Rusty Close (05:08):
Drinking all of our beer and enjoying all of our culinary delights.

Austin Padgett (05:11):
Much respect to show up and take everything right off the table. That’s fascinating.

Rusty Close (05:13):
Yeah.

Austin Padgett (05:15):
Well, there’s this guy named Freddy, who I think he first started in Atlanta and began this journey through the Southeast, basically, driving from point to point to see some of the initial matches. He was stopping at small little locations. He discovered Waffle House and was pretty high on Waffle House. The story as we were keeping up with it, because every night at dinner, we were just like, where did Freddy go today? The dude was living an incredible life. The traction he was getting off of posting that he had been to Waffle House, all of a sudden, companies are reaching out to him, trying to get a little taste of the Freddy experience. One of my favorite things is on the road trip, they’re listening to country radio basically the whole way through. The song of the summer was Ella Langley’s “She’s From Texas”.

Rusty Close (06:02):
I think it’s continuing on into the song of the fall.

Austin Padgett (06:05):
Oh, it’s been a long summer, Rusty. It’s still like 85 degrees here.

Rusty Close (06:07):
Yes, true.

Austin Padgett (06:09):
She invited Freddy and the fellas to be ‘Ella’s Fellas’ and come out to a concert, I think, in Oklahoma City or something like that…

Rusty Close (06:17):
Very nice.

Austin Padgett (06:18):
…and was able to make it work. I think J.J. Watt actually flew them out maybe to that. There was some connection where J.J. Watt made something happen for them.

Rusty Close (06:25):
Amazing.

Austin Padgett (06:25):
Very, very fascinating to watch that as he had this epic road trip around America. Do you have any big memories from road trips?

Rusty Close (06:33):
We kind of just got back from one from fall break. Not road trip in the traditional sense. We flew out west, but then we put some serious miles in while we were out there. Montana and then down into Wyoming and into Yellowstone. Saw tons of animals and amazing scenery and just that kind of thing. When I was a kid, my great-grandparents, which was my dad’s grandparents, lived in the middle of nowhere in southeastern Kansas in a town called Yates Center. We would drive out there from Atlanta, me, my dad, my mom, my brother.

I remember at one point my dad had a little Nissan Maxima. Thinking back, how in the world did we make this trip? We’re going up across the Mississippi into St. Louis and over into Kansas. Thinking back, it seems insane. We didn’t have iPads. We didn’t have all the stuff that the kids have now. But I do sort of remember those trips fondly.

Austin Padgett (07:23):
Yeah, I do, too. My brother passed a few years ago, and as we were thinking through memories, it’s amazing how many of them were in the car. It’s just like one of those things. Also, with your kids, you’re a captive audience, and so things just happen. It’s the serendipity of life. It’s one of those amazing things. Well, you guys have any regular places you stop on your road trips?

Rusty Close (07:42):
Depending on where we’re going, but yeah. I mean, if we’re going down to the beach and we’re taking a path that we have taken before, we’ll usually know ahead of time, like, where are we going to eat? Where are we going to pick up food? When we drive down to the Gulf Coast, as we call it, there’s a Jersey Mike’s on the way that’s kind of a good stopping point. We can get sandwiches…

Austin Padgett (08:01):
Something for everyone.

Rusty Close (08:01):
The timing is right, so it’s usually something along those lines.

Austin Padgett (08:04):
Gotcha. We had a lot of the same stops as well. I would tell you that we often plan our stops around a little place called Buc-ee’s.

Rusty Close (08:12):
A little place, that’s right.

Austin Padgett (08:13):
Yeah. Yeah. That brings us to today’s episode and the topic.

Rusty Close (08:16):
Sure.

Austin Padgett (08:18):
For the uninitiated, knowing that we have quite a number of foreign listeners who haven’t had Freddy’s experience. I should say, it was pretty amazing with the World Cup, seeing how many non-US folks discovered Buc-ee’s and were posting about it. For the uninitiated, it’s a chain of just enormous roadside travel centers. It’s founded in Texas, 1982, and now they have 60, more or less, locations, around that number. On the surface, it’s a gas station, convenience store, but it bears little resemblance to the small shop that you might picture, particularly for the European mind. I don’t know that it could comprehend what’s about to happen when they show up to one.

You have to think of a highway rest stop crossed with a supermarket, a barbecue counter, and a gift shop all under one roof that is the size of basically a football field. American football field, I should say. It has typically more than a hundred fuel pumps sitting outside at the biggest locations. Inside, you’ll find barbecue being carved up. There’s the so-called wall of jerky. There’s fudge, baked goods, snacks. There’s this huge soda fountain that goes on and on and on, and a huge range of merchandise from clothing to camping gear, home decor… We actually have some in our home.

Rusty Close (09:37):
Grills. You can get a grill.

Austin Padgett (09:38):
Exactly. Deer corn if you need some. A lot of this stuff features the company’s smiling cartoon beaver in a red cap. It’s open around the clock every day of the year, and people often drive well out of their way to visit, treating it as a destination rather than just a quick stop. I would tell you that if you plan on doing a quick stop, you might as well just get the gas and leave.

Rusty Close (10:00):
Yes. Do not go in.

Austin Padgett (10:01):
Because once you step inside… I should mention it’s renowned for having sparkling clean bathrooms.

Rusty Close (10:07):
And so many of them as well.

Austin Padgett (10:09):
So many of them. Yeah. You’re not going to wait in a line typically at a Buc-ee’s, at least from the male experience. I haven’t been over to the other side. They’re well-tended. Just a great place. But the problem is if you’re just going to use the bathroom and get some gas, you’ve got to pass through the smell of fresh barbecue, the fudge counter sitting right there, and then all of a sudden you’re thinking, “Well, we’re on my way to my mom’s. I should get her a gift.”

Rusty Close (10:32):
Yeah. Some pickled veg.

Austin Padgett (10:34):
Yeah, yeah. Something real nice.

Rusty Close (10:36):
And a smoker.

Austin Padgett (10:39):
Yeah, exactly. Why not? Yeah. And I wanted to keep up with the deer, so we got to get that crushed apple corn, something triple-cleaned. Here’s some fun facts that I put together. The name comes from the founder, whose name is Arch “Beaver, ” is his nickname, Aplin. He got his nickname as a child and built the name Buc-ee’s from it, combining it with the name of his Labrador retriever, Buck. Another account traces the name of the cartoon character to an old toothpaste ad, which we’ll get to a little later, so hold that thought. The size of it… The first store was in Lake Jackson, Texas and was only about 3,000 square feet, which is still large, but nothing compared to the Luling, Texas store which opened June 10, 2024, at about 75,000 square feet and took the world’s largest convenience store title from the Sevierville, Tennessee store. I never say that right. Is it Sevierville or Seversville?

Rusty Close (11:36):
Yeah, we’re going to have to get one of the listeners to weigh in on that, because I don’t know either.

Austin Padgett (11:40):
I feel like with Dolly gone, I’ve got to get that right from now on.

Rusty Close (11:44):
Yes, we owe it to her.

Austin Padgett (11:45):
Absolutely. The industry average for a convenience store is about 2,500 square feet, just to give everyone some basis. We’re talking about nearly 30 times larger. This particular, this new station has 120 fuel pumps outside. We’ve already talked about the bathrooms. I made a note of that, but just so you know that there’s one of the places in Texas, America’s Best Bathroom contest, and it has 83 stalls, 60 gas pumps, and a 68,000-square-foot building.

Rusty Close (12:15):
I’ll say this. We stopped on our last trip to the beach at an unnamed grocery store chain, and it did not win America’s Best Bathroom contest, decidedly. May have come in last.

Austin Padgett (12:29):
Okay. Quick side route, quick tip for the road. If you’re not at somewhere that’s renowned for clean bathrooms, you may be able to kind of do it the old Padgett way, where we stop at a hotel.

Rusty Close (12:37):
Ooh.

Austin Padgett (12:44):
Always a lobby bathroom. It’s never used because everyone has their own private bathroom in their room. You just walk in like you own the place, go to that bathroom and walk right back out. Now, I only typically do this with the particular chain of hotels that I’m a regular at, that I have a credit card, et cetera.

Rusty Close (13:03):
You figure that it’s owed to you based on your loyalty.

Austin Padgett (13:06):
That’s my rationale, right. But you do what you have to do. But I offer that as a tip for the listeners.

Rusty Close (13:12):
I like that. Yeah.

Austin Padgett (13:14):
It has not failed yet. I’ve never been questioned on it as far as, like, “What are you doing here?”

Rusty Close (13:18):
Those folks have better things to do. Yeah. I’m not creating a problem for myself.

Austin Padgett (13:23):
That’s right. Yeah, exactly. One item here, too, is the trucks. You don’t have trucks at Buc-ee’s. It is purely consumer. There’s no 18-wheelers coming in and out like there are at the larger truck stops that kind of have… Some of them have comparable size or at least selections of kind of like, you know, you have… Some that have fast food inside them and those sorts of things. So, Rusty, have you been to a Buc-ee’s and is it a draw for you?

Rusty Close (13:50):
Hell, yes, it is, 100%. There’s one, for people familiar with the metro area, there’s one about 60 miles north, and then if you go south, you’ll also find your way to one. But yes, I’ll absolutely go. I had to take my daughter to camp, and there was a Buc-ee’s close enough to where she had to be dropped off. That was incentive enough for me to be glad to go also pick her up. I mean, I’ll get extra barbecue sandwiches, I’ll bring them home, I’ll put them in the freezer. There’s a lot to love from my perspective about Buc-ee’s.

Austin Padgett (14:27):
Yeah, yeah. I should mention it’s a mixed bag at my house, where the experience is overwhelming for some.

Rusty Close (14:34):
100% on one of those big travel weekends.

Austin Padgett (14:36):
Yeah. Oh, yeah. That’s usually… I mean, that’s usually when the whole crew is going. My youngest son and I roll regularly during football season down to Tallahassee for games. We hit a Buc-ee’s then. We’re not usually intersecting with a major holiday.

Rusty Close (14:51):
Yeah, yeah. When it’s one of those big travel weekends, fall break, spring break, around the metro area, I mean, legitimately you can drive in and not be able to find a gas pump, which just gives you a sense of how insane it will be on those days.

Austin Padgett (15:06):
Oh, absolutely. Yeah. You got 100 gas pumps but you’re sitting there waiting in line.

Rusty Close (15:10):
No room at the inn.

Austin Padgett (15:12):
I should mention I spent the night at a Buc-ee’s one time where we were coming back from… It was when our partnership retreat was in Salt Lake.

Rusty Close (15:16):
Okay.

Austin Padgett (15:20):
It ran into our fall break, and we had already planned to go down to the beach back home, the Gulf.

Rusty Close (15:29):
Oh, sure, sure, sure.

Austin Padgett (15:30):
Yeah. But I’m landing in Atlanta because the original plan was I would meet up with everybody and we’d ride all together, but my flight gets delayed, turns into this whole thing, so the rest of the family has to go down and I’m going to catch up. I land in Atlanta and I’m driving, and because of the delay, it’s already been a long day, long couple of days, actually. Then landing and I’ve got to make it all the way down, and from the Atlanta airport it’s probably about five hours driving, realistically. But I am on the road and my eyes are getting bleary, brother. You know how it gets when you’re like, “This is starting to get dangerous.”

Rusty Close (15:50):
100%, yep.

Austin Padgett (16:09):
So I decide, you know what’s around the corner? The Opelika Buc-ee’s. I’m just going to stop for a minute, take a break, get the gas, and I’ll just rest my eyes for about 15 minutes.

Rusty Close (16:23):
The classic power nap.

Austin Padgett (16:24):
Yeah. Yeah. Well, that power nap turns into about five hours of sleeping. I had kind of wheeled out to the far corner of tarmac, so to speak.

Rusty Close (16:28):
Sure.

Austin Padgett (16:34):
It looks like they’re doing some work out on it. I’m like, nobody’s going to bother me, and I’m not going to bother anyone. Just sitting out here. It got to the point where inside the cabin of the vehicle, I was there for so long and breathing and the air, because it was fall and the air mixture where the top of the ceiling was starting to get damp.

Rusty Close (16:54):
Starting to rain on you. Yeah, yeah, yeah.

Austin Padgett (16:56):
It was disgusting. Probably about a couple hours into this, I wake up just kind of with this soggy cabin. I decide I’m going to put down the window just a little bit. It turns out that a few hours later, that work that looked like it was going to be done around me was actually going to be done that day. This mariachi band radio fires up, and that is how I awoke in the Buc-ee’s parking lot.

Rusty Close (17:05):
Oh, my God.

Austin Padgett (17:14):
It was wild.

Rusty Close (17:23):
I can’t imagine the panic of… I’m surprised there weren’t calls from the family like, where are you? Are you dead? That kind of thing.

Austin Padgett (17:32):
Yeah. It was the middle of the night and I sent a note saying, stopping here for a break. I’ll let you know when I’m coming in. It just happened to be hours later.

Rusty Close (17:38):
Hours later.

Austin Padgett (17:45):
Yeah. I roll up about 9:00 AM at that point then, and then I’m like, well, I guess I’ll take the kids out to the sand.

Rusty Close (17:52):
Sure. I’m well rested.

Austin Padgett (17:54):
Yeah, exactly. I feel great. It’s a new day for me.

Rusty Close (17:56):
I like it.

Austin Padgett (17:58):
Oh, what a story. Let’s get back to Buc-ee’s. All that said, they didn’t mind me spending the night. I don’t know the rules, but it seemed… You know, it was fine for a few hours. I’m sure there have been other people who’ve spent even longer than that, not even sleeping.

Rusty Close (18:05):
Right, right.

Austin Padgett (18:12):
So much to do there. The beaver logo is really what we’re going to come out and talk about today. The beaver logo is kind of this extraordinarily recognizable piece of branding. It kind of follows you around the interstate through signs that will advertise the location like 100 miles away, maybe even more. You’ll see, hey, in 132 miles, just plan on pulling over.

Rusty Close (18:35):
You can make it.

Austin Padgett (18:36):
Exactly. It’s going to have that beaver head logo on it in the circle. That’s what we’re going to take a look at today, because it’s an issue that’s been explored over the past several months. I should mention that we’re recording here in early October, and some of the case discussion that we have may be a little behind once the episode drops later this month or whenever we might get to it. There’s some moving parts to walk through today. But the central question as we go through is kind of… It’s a flow of questions, as you’ll see, is like does Buc-ee’s own the name Buc-ee’s? Do they own the Buc-ee’s beaver? Do they own a cartoon animal inside a circle? When I say own, I mean, can they enforce it against other people?

Rusty Close (18:58):
Sure.

Austin Padgett (19:19):
Can they enforce it in the category of a cartoon animal used by convenience stores or the concept of anthropomorphic animal convenience store mascots? Rusty, we’re about to dive in. Kind of that chain, we’ll build it out together going through these cases real quick. Anything else you want to think about before we start moving forward in earnest?

Rusty Close (19:41):
No, I mean, I think it’s that classic kind of question of we have some rights. How far can we push it? How far can we reach onto the other side of these?

Austin Padgett (19:51):
Totally. The first case I want to talk about isn’t even really part of the national discussion. We’ll talk about the national discussion in a second. But it’s Buc-ee’s versus Bucky’s as names. I should say one is, when I say Buc-ee’s for what we’ve been talking about, it’s B-U-C-dash-E-E-apostrophe-S.

Rusty Close (20:02):
Right.

Austin Padgett (20:12):
Kind of a weird look and feel to it. This other one is Bucky’s, B-U-C-K-Y-apostrophe-S. So, Buc-ee’s, the one we’ve been talking about, I’m going to call Texas Buc-ee’s.

Rusty Close (20:18):
Okay.

Austin Padgett (20:23):
This other one I’m going to call Nebraska Bucky’s.

Rusty Close (20:27):
Got it. We can keep that straight.

Austin Padgett (20:29):
Yeah. Nebraska Bucky’s is a gas station convenience store operated by Buck’s Incorporated, which is a Nebraska corporation in Omaha. So, like I said, we’ll call it Nebraska Bucky’s just to keep the differences alive. The huge beaver chain is going to be Texas Buc-ee’s, just so we’re all clear.

Rusty Close (20:43):
Yep.

Austin Padgett (20:50):
Nebraska Bucky’s applied to register its wordmark Bucky’s with the USPTO in 2006. Texas Buc-ee’s applies a few months later in 2006. It’s application is suspended and the examiner says, “Hey, we’re going to see what happens with Nebraska Bucky’s first,” and then decide. Well, Texas Buc-ee’s opposes Nebraska Bucky’s application at the TTAB, and Nebraska Bucky’s then sues Texas Buc-ee’s in Nebraska in December 2008. Texas Buc-ee’s is like, “Well, let’s just… We’ll handle this at the PTO level.”, and Nebraska Bucky’s says, “No, I’ll see you in court.”, and they take the beaver to court.

With names that similar, the question is who came first, basically, because they’re doing basically the same thing with a very similar-sounding name. Texas Buc-ee’s has claimed use since July 1982. Nebraska Bucky’s comes in and claims May 1982, so a little earlier, even though on their application they had said their first use… Granted, it’s a first use as early as 1989.

Rusty Close (21:56):
When they filled out their paperwork for their trademark in Nebraska, check the box for when was your first use, they used 1989. If we’re thinking through this, Texas probably looks at that and goes, “Well, wait a minute, 1989? We’ve been using this since 1982. We’re going to oppose your mark on the basis of that.”

Austin Padgett (22:13):
Yeah, yeah. I make a deal of the dates here, because it’s going to come up a little later.

Rusty Close (22:16):
Yeah, yeah, yeah.

Austin Padgett (22:19):
So, we’ve got two operations. We’re talking about 1982 dates, but we’re now in 2008. You and I are kids when… in the initial one. Now we’re grown adults in 2008 thinking through real-life issues. What are the realistic options here for them, Rusty?

Rusty Close (22:42):
I mean, it seems to me, as all of our episodes generally do, this is going to come down to some sort of contractual agreement between them. Being that we’re calling one Texas and one Nebraska, maybe we’re going to have some geographic limitations on who can be where and use their names, and you stay over here, we’ll stay over here, and we’ll just let each other go.

Austin Padgett (23:07):
Very common fix to trademark issues is that, rather than have the courts decide, let’s decide this on our own terms together. It’s kind of like the old saying about settlement: if everyone walks away unhappy, it’s probably a good deal.

Rusty Close (23:14):
Right.

Austin Padgett (23:22):
In some cases, the coexistence agreements can be great deals for both parties, particularly if they’re not really… It’s not the case here, but if the parties have an issue or one party has an issue and the other doesn’t, just having some agreement where like, “Oh, here’s some boundary lines, and let’s come up with clear boundary lines of how we’re going to operate and we’ll just operate within those. If you need to go over the boundary lines, you’re just going to choose another different mark to go under.” Let’s figure this out now before it gets really messy, the consumer starts getting involved, that sort of thing.

That is, as you anticipated, where this goes. 2009, the parties signed what’s called a coexistence and settlement agreement. Coexistence is this type of concept we’ve been discussing where we’re going to agree to some terms by which we coexist. It allows both parties to register their marks. I mean, they could use their marks for convenience store items, gasoline, related goods and services, quote, “throughout the United States.” The caveat here is that Texas Buc-ee’s, which by the facts that we kind of have at hand is slightly later, has agreed that for five years it’s not going to expand into certain states. That’s kind of this time-barred item.

Rusty Close (24:39):
I don’t think this is going to go well. I don’t want to spoil where we’re going, but I got a feeling this is going to cause a problem.

Austin Padgett (24:44):
This doesn’t have the makings of a great coexistence, because we’re just going to keep going, and we’re going to agree there’s no likelihood of confusion. These things are supposed to be… The whole reason that you’re supposed to figure it out is that you’re the parties that best know your consumers.

Rusty Close (24:52):
Right.

Austin Padgett (25:00):
We’ll get to the trademark stuff in a minute, but it’s supposed to be about the consumers and the relationship they have with the brand.

Rusty Close (25:07):
Really reminding me of our WWE/WWF discussion.

Austin Padgett (25:12):
Oh, you’re getting those vibes. Yeah, yeah. Here we go. Here we go. The parties agree, and this is part of what has to be part of coexistence agreements is that you have to agree that there’s not going to be any likelihood of confusion that will result. If you don’t have that, it’s really not very meaningful as a coexistence agreement, because it doesn’t have any real trademark punch to it. So, agree to that. I should mention that one of the reasons these types of agreements matter and why it may matter later is that this is a discoverable document.

If one of these parties goes and asserts against another Buc-ee’s that they can’t use the term Buc-ee’s or some similar name, that other one may already know about this from the lawsuit, or they may find it in discovery and say, “Wait a second. You already agreed with Nebraska Bucky’s that there’s no likelihood of confusion between you two doing the same thing with a very similar name. We kind of look very much similar. We just came a little later and now you’re telling us we can’t do the same thing.”

Rusty Close (26:08):
Right.

Austin Padgett (26:14):
You start to carve up things, and these things can get thrown in your face pretty easily if you’re not careful with it. You want to make sure that you put some level of distinction in there where when people throw it in your face, you say, “Yeah, but they agreed not to do XYZ as part of the brand differentiation.” That’s how we’re making the difference to consumers that they’re not going to be confused because we’re not going to either operate in the same channels or we’re going to use a different set of brand indicia and agree to other terms as part of it, something like that.

That’s the danger of these. They’re great for resolving agreements when the parties get tired of fighting, but they can really have a long-lasting impact, because these things can last a really long time, as long as these parties continue to exist.

Rusty Close (26:59):
Sure.

Austin Padgett (26:59):
Now we come down to what you’ve anticipated is the rematch.

Rusty Close (27:02):
Yep.

Austin Padgett (27:05):
We made it past the five years, but we haven’t made it past eight years, because we started in 2008 with this dispute. Now we’re in 2016, when Nebraska Bucky’s decides it’s going to expand into the Houston area. Texas Buc-ee’s alleges that the Nebraska Bucky’s store was built within 15 miles of a Texas Buc-ee’s. Now, Rusty, do we have a contractual problem with this?

Rusty Close (27:31):
Well, but wasn’t it that Texas Buc-ee’s was not going to expand? It doesn’t seem like there’s any contractual reason why Nebraska Bucky’s can’t then come into Texas. Part of the deal was we’re stipulating that there’ll be no likelihood of confusion and that, even if we enter the same markets, there’ll be no likelihood of confusion. I don’t think they’re stepping on what they agreed to contractually, at least.

Austin Padgett (28:02):
Right. Texas Buc-ee’s sues Nebraska Bucky’s. They allege infringement, dilution, unfair competition, unjust enrichment, kind of the standard slate of trademark items that you see. The litigation position is that in 2009, parties agreed that no likelihood of confusion would result. But then in 2017, Buc-ee’s, Texas Buc-ee’s, that is, alleges actual confusion. So, you have this interesting set of facts.

Rusty Close (28:12):
Interesting, yes.

Austin Padgett (28:32):
Let me cut to the chase on this one, and we’ll keep moving ahead, because I see where our counter is already and we’ve got some room to cover. It comes down to that Texas Buc-ee’s basically comes in and asserts, “Hey, look, court. We were under the impression that that 1982 date was a real date, and now we have some information it seems. We don’t get all the facts in the case, or at least in the public filings, but we have some facts that tend to show that that 1989 date was actually more correct than the 1982 date. We think that there was fraud.”

Rusty Close (29:07):
Ooh, I like that. Okay.

Austin Padgett (29:09):
Yeah, and that there was misrepresentation and that we were relying on them being truthful. It turns out that the court says, “Well, didn’t you have an attorney?” They said, “Yeah, we do.” The court says, “Well, you guys should have looked into that. Like, there should have been some red flags.” The case records… I downloaded the whole case record, and it’s tough to kind of parse what’s happening at different points. But basically, the case is, we’re done. Nebraska Bucky’s wins, and there’s some sort of arbitration award where not only do they win, but they get 400 grand. Whether that’s fees, what that’s for, it’s unclear. That’s the result of the case is that Texas Buc-ee’s loses. They’re held to their coexistence agreement, whether that date was right or not, and they have to pay 400 grand to Nebraska Bucky’s.

Rusty Close (30:04):
You talk about these sometimes and you can imagine the reaction of the parties when this stuff is happening. You can imagine Texas Buc-ee’s going, “Wait a minute, you’re building a store 15 miles from us. It is causing actual confusion. You lied about your date of first use, and now we owe you 400 grand.” You can just imagine the rage, the steam coming out of their ears, as I like to say.

Austin Padgett (30:21):
Absolutely, dude. I marked it down as just one of those lessons that I should probably learn from somebody else of, “Hey, let’s take a little one-second look at a coexistence agreement just to make sure.” These types of things happen, and it’s probably one of those questions we should have before we sign this thing: “What would you guys think if they built a Nebraska Bucky’s right across the road from Texas Buc-ee’s?”

Rusty Close (30:38):
Right, right.

Austin Padgett (30:56):
Would that be a problem?

Rusty Close (30:58):
The business decision, it’s like, what went into that decision? “We’re going to put it right here.” It’s almost like, “We’re going to rub your nose in it and see what happens.”

Austin Padgett (31:06):
Yeah, yeah. Or should we have agreed that… Yeah, we agree there won’t be any real confusion, but let’s put some sort of gate or like whoever gets there first gets five miles, maybe, or something like that. Apparently that was not part of the agreement. I don’t know that you can go and second-guess these things. Maybe at that time it’s kind of like, “Well, do they really have an interest in Texas? We dominate here. They wouldn’t dare.”

Rusty Close (31:33):
It’s our home turf. Why would they even bother?

Austin Padgett (31:35):
Yeah. This is the weird part because we’re about to get to the John Oliver piece. But I frame it up, because now you’ve got a brand that they’ve certainly enforced against other Bucky marks, and they claim that words that are similar to Buc-ee’s or just end in an “E” sometimes are too close. But you have to wonder if that framing of, like, they don’t have complete control, or at least at some point they kind of didn’t have complete control of their chief brand, does that impact the choices you make on the other brand elements you have around protecting those types of things?

Rusty Close (32:16):
Right, right. I think what you’re saying, if I’m hearing you right, is you start to enforce more on the margins, because you can’t necessarily enforce the core name.

Austin Padgett (32:28):
Right. Yeah, exactly. I’m theorizing here…

Rusty Close (32:32):
Sure, yeah, 100%.

Austin Padgett (32:33):
I don’t know, but it tells a good story at least. Let’s talk about this John Oliver piece real quick. Did you see it?

Rusty Close (32:39):
I didn’t see it at the time, but I have since watched some of the clips and reels and stuff like that, so I’m familiar.

Austin Padgett (32:46):
I’m ahead of our script. I should say that like what this is: so July 26, 2026, there’s a show called Last Week Tonight on HBO and a comedian named John Oliver hosts it. It’s basically kind of a news send-up show. They ran a segment criticizing Buc-ee’s for what he described as aggressive trademark enforcement that highlights these lawsuits that we’re going to talk about and legal threats against businesses whose cartoon animal logos allegedly resemble the Buc-ee’s brand.

Probably like you, it lit up my phone. A bunch of buddies were sending it to me and saying, “Hey, man, did you see this? This is great,” type of stuff. Kind of paraphrasing what John Oliver gets at, he’s basically saying that Buc-ee’s loves to just sue other companies, particularly those with animal mascots. He noted Buc-ee’s has brought more than a dozen lawsuits against businesses, mainly over animal-based logos. I’ve now read all the complaints, and I can tell you that is true.

Rusty Close (33:41):
We had the Nebraska moves in to Texas. That was in the 2016 to 2018 range. When did Texas Buc-ee’s sort of initiate their campaign against these other logos? Was that after?

Austin Padgett (33:57):
Before that. It was before that, yeah.

Rusty Close (33:57):
It was even before that. Okay.

Austin Padgett (33:58):
Yeah. Yeah, it’s before that. But the we’ll talk about this process kind of evolves through that same time period. It’s really interesting timing that up with they sign this agreement with Bucky’s, then they move into enforcement mode kind of at the five-year mark. Then they have this battle in Texas with the other Buc-ee’s. Meanwhile, they’re having these other battles with an evolving set of parameters about, around, and that’s what I’m trying to draw out in this is that evolution.

Rusty Close (34:11):
Yep.

Austin Padgett (34:28):
Oliver has this stunt that he calls the Buc-Off Shop. He launches an online merch store featuring this red and yellow logo with this character he has called Mr. Nutterbutter, who’s a squirrel, and has a bunch of merchandise. It’s still there. I checked this morning. Still there. You can go buy a camouflage Buc-Off cap if you want to. The proceeds go to Hunger Free America. In the closing, Oliver dares Buc-ee’s to sue him with some… A profane “bring it,” basically. The point is that HBO has more legal resources than a lot of the mom-and-pop, or at least perceived mom-and-pop shops that Oliver is saying that they’re going after.

Rusty Close (35:08):
That the Texas Buc-ee’s has been picking on.

Austin Padgett (35:09):
Correct.

Rusty Close (35:11):
Yeah.

Austin Padgett (35:12):
Yeah. That’s kind of… That’s what’s in the news. It’s still to a little bit. I’ve had some interviews within the past couple of weeks with reporters wanting to talk about this and get some more thoughts from professionals and that type of stuff. What Oliver gets right is that from a layperson’s perspective, these comparisons look in a lot of times ridiculous. The resource imbalance is probably a real thing. I don’t know a lot of these parties. We’ll talk about one that I do know. That’s where we’re going to tee up here. But what’s… For our purpose, let’s delve into more of the legal framework. We say it almost every trademark episode that we do, that trademark laws are best thought of as consumer protection statutes. I tell my clients, if you think of it that way, you’re generally not going to go wrong in your analysis. You’re going to be on the right path, rather than thinking of it as, “Oh, this is something I own and they can’t do that.”

Rusty Close (36:10):
“This is to protect me.”

Austin Padgett (36:13):
“And my investment.” All that matters to a certain degree, but the chief question is: are consumers going to be confused? Here the question isn’t whether two animals are the same species. It’s whether consumers are going to have this confusion about who is behind the store, the quality of and the recognizability of the services or products that they’re getting, or maybe even whether there’s an affiliation between these two stores. You have the standard kind of list of factors that you go through: the strength of the Buc-ee’s mark, are these identical goods and services like gas and convenience stores? For the most part, these cases are that.

Are they in the same channels of trade, like roadside, highway traffic, interstate, those types of things? Conditions of the purchase: do you have quick stops, quick decisions, and overall commercial impression of what’s happening here? Actual confusion, I should mention, doesn’t require or, sorry, likelihood of confusion is the measure. It doesn’t require actual confusion. That’s not required. It’s a spectrum of confusion, and all you have to have is a likelihood, not actual.

Though I would tell you, there’s a number of cases that say if things go on for years and there’s no actual confusion, there’s probably not a likelihood of confusion, which is a natural result. We’ll keep going through here. Let’s start building out this animal kingdom, Rusty. We’re going to start with one of the first cases. Before we go too far, listeners should know that Buc-ee’s has brought other kinds of cases. They have name cases where they’ve enforced against other Buc-ee’s. They have an apparel case and some counterfeit merchandise with stickers, shirts, patches. But let’s focus on the line of cases that seem to be on the largest body on the docket, which are the animals and mascots. They’re, frankly, a lot more fun to talk about. For each of these, we’ll kind of go through the same quick template: who is the defendant, what do the logos look like, what Buc-ee’s say was similar, and then if it’s important, how did it end?

Rusty Close (37:41):
Yeah.

Austin Padgett (38:04):
I should say, a lot of this information comes from Buc-ee’s own complaints. I haven’t done a deep dive into what was actually happening on the ground. I’m more interested in how they’re framing up their theories of the case as that evolves over time.

Rusty Close (38:18):
Yeah, so we can see how it changes. Yeah.

Austin Padgett (38:20):
About the necessary truth of the matter.

Rusty Close (38:21):
Right, right, right.

Austin Padgett (38:23):
The first one, let’s talk about the Grab-N-Go case. I’ve pictured it here for you in some notes that we sent back and forth, Rusty. Can you describe what you see here?

Rusty Close (38:34):
Yeah. We’ve got the Buc-ee’s logo that I think most people are going to be familiar with. The Grab-N-Go, I think, is meant to be a cartoon monkey.

Austin Padgett (38:39):
That’s right.

Rusty Close (38:45):
It is wearing a hat, a red hat. It’s backwards, it looks like. There’s a yellow background, but the monkey is looking straight at you. Again, it’s a cartoon monkey. I guess I should be more clear, but it’s a cartoon monkey. Kind of got one eye squinted and one eye wide open, but it is looking straight on at you.

Austin Padgett (39:06):
Yeah, exactly. That’s exactly what Buc-ee’s was pointing at is that they’re saying, “Hey, red hat. Our beaver has a red hat. The yellow circle inside a black circle.” There’s some other graphic similarities that you’ve pointed out. Ultimately, they agreed to a final judgment and permanent injunction back in… This goes back to 2013. If you’re doing your math, we’re about at that five-year timeline from the other Buc-ee’s. Coincidence, maybe, but it’s interesting.

Rusty Close (39:34):
Right, right, right.

Austin Padgett (39:35):
That this is when you have your first case like that. The next one is a case called… Well, we’ll call it Irv’s, from 2013. This one involves a cowboy. This is the toughest part about a listening medium is that we’re going to try to describe these things. But if anybody wants pictures of these things, email me, austin.padgett@troutman.com, and I’ll send you kind of pictures that you can see for some of the comparisons. Happy to do it, and happy to count that as fan engagement.

Rusty Close (40:01):
Yeah, and you will then be on our mailing list permanently.

Austin Padgett (40:04):
Absolutely. You’re going to get some great updates from time to time.

Rusty Close (40:08):
Keeping in mind the Buc-ee’s logo, the beaver is kind of… I think what they would say is looking off to the right. I don’t know, right or left depending on your perspective, but I think they characterize it as looking off to the right.

Austin Padgett (40:13):
Yeah.

Rusty Close (40:19):
This one you get a…

Austin Padgett (40:19):
Stage left, but yeah, from…

Rusty Close (40:21):
You’re right, I could never get that right.

Austin Padgett (40:22):
That’s right.

Rusty Close (40:23):
Then this one you get a cartoon cowboy. Not even an animal. Wearing a cowboy hat, which is not red, but it is looking off in the same direction, has the same yellow background. There’s lettering that is red, so you do have some yellow and some red. There’s a red sort of handkerchief tied around the cowboy’s neck. That’s kind of what we’ve got.

Austin Padgett (40:48):
Yeah, yeah. There was another case a year after that called the B&B Grocery case that has another… It’s called the Frio Beaver with this… It’s probably the closest. It’s got a bucktooth beaver on a yellow circle, red hat, red shorts, pointing to the right. That one’s just… They come to a settlement and resolution there. You’re starting to see the contours, Rusty, of these claims, right?

Rusty Close (41:10):
Yeah. I mean, they seem to really focus on the coloring, right? The yellow background, some prominent red, direction that the character is facing. They’re starting to hone in on what can we pick up when we’re making our case that this is similar to what we do.

Austin Padgett (41:30):
Yeah. Then going kind of like… We’re going to go into a transition time into the kind of as these theories start to develop. You’ve got the Choke Canyon case, which is an alligator on a yellow background circle. The alligator’s wearing a hat. It’s not a red hat, but it also has a red tongue, which I never noticed Buc-ee’s red tongue before, but it is there in his mouth behind the teeth.

Rusty Close (41:53):
I guess that’s true. Yeah.

Austin Padgett (41:54):
The alligator’s pointing to the right. This one actually goes to trial. Jury returns a verdict in favor of Buc-ee’s, finding infringement, finding that the logo is famous in Texas. There’s dilution, which is a theory… We’re going to have to plan another whole episode on dilution just to kind of get at that, and some other claims as well. The case closes out in that 2018 time period.

Rusty Close (42:17):
I would encourage the people to either look this up or to email you, because when you see the two logos side by side and you hear that Buc-ee’s won, it’s a pretty surprising outcome, I would say, from… Just from me looking at the pictures going, “Wait, what? People… There’s likelihood of confusion here?” It’s just a little tough to…

Austin Padgett (42:38):
That’s the tough part about these cases is just looking at them doesn’t always give you the full picture. But a jury went back with jury instructions and said, “We find on these cases.” That is a holding. Buc-ee’s wins on that one. There’s no settlement or unnatural end to the case. It’s just it goes the whole way through and there’s a finding and Buc-ee’s wins. Through that time period, now we’re going to come up into more modern times, kind of the ’24, ’25 time period. I’m going to say that the theory goes broader, more national in scope as well.

You have Duckees Drive, which is… It’s a duck, and it’s in a green shirt, but it has a yellow background. Looking off to the left, there is a black circle, yellow background, I’ll tell you that. Still tied a little bit to it. But there’s no hat, there’s no red in it. That one closed out in October 2025, so relatively recently. Then you’ve got, where things start to get more curious with a case called Super Fuels Lombardy. What do you see on that one, Rusty? This is the puppy.

Rusty Close (43:51):
Yeah. You do have a puppy dog, cartoon puppy dog. Coloring is similar, sort of facing in the same direction. It’s a little more straight on. Blue background, not yellow. You see more of the puppy’s torso. It’s not just its head. It’s obviously, like you said, it’s wearing a red cape, no hat at all. But yeah, there is a circle. No yellow, like I said.

Austin Padgett (44:18):
Yeah. The circle seems to be a big part of a lot of these cases. We’ll see. I mean, I’m guessing a lot of these could argue that they could find circles all over the place, circle representations. The last one is Barc-ee’s, which is a circle, yellow circle with a dog in a pink Cadillac… Or is that a Chevy? That looks maybe a Chevy Bel Air type of car.

Rusty Close (44:29):
Sure. Right.

Austin Padgett (44:40):
With a cup of coffee riding through. He’s got a blue cap on, red tongue hanging out. Then we get into kind of, like even this year with going after the Par Hawaii case, which is in Texas, regarding a mongoose. It’s described elements… You’ve got a cartoon animal, it has wide eyes, a smile, and a round background. That’s kind of how it’s framed up. Then the Mickey’s Moose case… We’ll talk about that one in a second. Then there’s the Beaver’s Mini Mart case up in Ohio, which is a cartoon beaver. That sounds… But there’s no circle around it. The similarities are basically you got a cartoon beaver with wide eyes and a smile, and red as the predominant color in the signage. When it says Beaver’s Mini Mart, it’s in a red font.

The pattern as we go through these cases are, kind of over time, the list of elements that Buc-ee’s is identifying just gets shorter and shorter. The early complaints list roughly nine. You got hat, tongue, circle, yellow, black outline, right-facing, font similarity sometimes. But the more recent ones list like three or four. You got cartoon animal, smile, round background. The colors kind of shift with the cases as they need to, whether it’s predominantly red or maybe it’s predominantly brown because you’ve got a furry animal or something like that. Rusty, is this a brand owner refining its theory, or is this just the circle getting bigger?

Rusty Close (46:11):
I cynically would say it’s just the circle getting bigger. They’re taking bigger and bigger swings and going… You know, somebody’s coming back and going, “Well, that one doesn’t even have a circle.” They’re going, “Yeah, but there’s red, there’s a cartoon animal,” and it just sort of feels that way.

Austin Padgett (46:30):
Yeah. Let’s take a look at Mickey’s, which is… I’ll describe it real quick. It’s a moose in a hexagonal pattern that’s red in the background, but clearly a smiling moose. To be fair, it’s not only about the moose. Buc-ee’s has alleged that the likelihood of confusion is exacerbated, and that’s a quote, by Mickey Mart’s, what they previously went by, they transitioned to the name Mickey’s with the possessive.

Rusty Close (46:42):
Okay.

Austin Padgett (46:56):
Buc-ee’s says, “Well, that’s more similar to our possessive Buc-ee’s,” along with predominant use of red and a logo that Buc-ee’s says closely resembles its own with a large antlered moose looking to the right. Granted, it is smiling, but it wears no hat. Something to think through. It’s not just the “a moose is not a beaver” defense. You have to kind of look at, does the name change make this look different than just the moose on its own? Something to think through in that case. I should say that on Mickey’s side, Mickey says that the moose came from a child’s drawing, which I’ve got to see that, because the drawing is quite well done. I mean, maybe it’s an older teenager or something.

Rusty Close (47:43):
I would hope so. Yeah. Or a really talented child.

Austin Padgett (47:46):
Yes, exactly. In that case, they have some filings due here. It sounds like they’ve settled that. They’re going to file some stuff here in the next few weeks, at least as it stands right now per the court’s order. What I want to transition to now is right around the corner from me. We are now in the Teddy’s Market case, which has arrived in Georgia. Teddy’s Market has three what we’ll call metro Atlanta locations, which I’ve hinted at before. I don’t really live close to Atlanta. I live more than 40 miles out of the city. We’re talking kind of not even real suburbs.

These are separate cities. You have Canton, which opened in November of 2024, a place called Teddy’s Market. The place near me is called Ball Ground, opened in January of 2025, and Decatur, which opened in August 7, 2026. The Canton store, I’m trying to give you a flavor here, is 3,500 square foot convenience store on one acre with four two-sided gas pumps under a BP-branded canopy. The nearest Buc-ee’s is the one in Adairsville, which you probably know about.

Rusty Close (48:57):
I do.

Austin Padgett (48:58):
It’s a 53,000 square foot store on more than 22 acres with 120 fueling stations. Just call back to those sizes back there. Per Teddy’s, the Canton store is more than 38 miles and 48 minutes from the Buc-ee’s and about 20 miles off of I-75. I can verify that. I would tell you that the Ball Ground location that I have gassed up at is relatively small. Very nice place. It’s fairly new, of course, but I drive a pretty large truck and it is very difficult to negotiate the turns even to get to a pump in the way this thing is situated.

Rusty Close (49:16):
Oh, interesting.

Austin Padgett (49:36):
Very different from Buc-ee’s where I have wide swings because I drive diesel, baby, and to get to those diesel pumps…

Rusty Close (49:42):
That’s working out pretty well these days.

Austin Padgett (49:44):
Oh, man. Killer right now at the pump. Yeah, I also have my hybrid car which I take more regularly right now. But yeah, the wide swings, and just the size difference alone and the BP branding, like I didn’t even think of it as a Teddy’s market. I’m usually like, I’m going to head to the BP and just need to get some diesel or something. That’s my experience with it. Any thoughts about it as we look at the pictures that I’ve given you? Because it’s… Maybe if you’ll describe what their logo looks like, that would be…

Rusty Close (50:15):
Yeah, I mean, so again, when I think of Buc-ee’s and he’s kind of looking off to the side, this is a teddy bear, a cartoon teddy bear. He’s wearing a blue hat, he’s got on a blue, it looks like a blue hoodie, red background. He’s looking at you straight on. A lot of… Oh, and the… It’s framed in what looks like a square, more or less. We don’t have the circle, we don’t have the yellow, we don’t have… There is red, the background is red, and it’s looking head-on, as opposed to up and to the right.

Austin Padgett (50:33):
Yeah. So what…

Rusty Close (50:51):
Oh, and no teeth. No prominent teeth like in the Buc-ee’s logo.

Austin Padgett (50:54):
Yeah, that would be scary if your teddy bear was showing teeth. I’ve also included some other facts. In the complaint, they complain that there’s… You know, when you go to Buc-ee’s, there’s always a statue of Buc-ee himself. They say, “Oh, well, this place has a statue.” I’ve included a picture of what is the statue, just so you have a picture of it. It’s not much, if you can verify that for our listeners so they know I’m not telling lies.

Rusty Close (51:23):
Yeah, I mean, the Buc-ee’s ones are really prominent. They’re sitting up on a pedestal. It’s a big deal. This just kind of looks like, “Hey, can we find a statue of a teddy bear and put a blue hoodie on it and we’ll set it inside the door.”

Austin Padgett (51:35):
I think it’s like a lawn ornament to go by your front door.

Rusty Close (51:38):
Oh, that’s what it looks like, yeah.

Austin Padgett (51:39):
Yeah. Then one thing they also complain about is the fact that when you go into the store, there are teddy bears, this character Teddy, throughout the store as a character. They say the infringe… This is a quote, “The infringing brand identity featured at Teddy’s stores contains prominent depictions of an anthropomorphic animal mascot through a recurring logo and in-store renderings.” That seems to be part of what their claim is now is that that’s what they’re going to target are these types of mascots.

Rusty Close (52:15):
I mean, this just has… It has the feel of what I would just call punching down. To what end is… What’s the goal here? What’s the business goal here, other than well, I don’t know, I won’t even speculate, but the feeling that it gives me is punching down.

Austin Padgett (52:33):
Yeah. Maybe part of it is that this whole dispute started when they filed a trademark application.

Rusty Close (52:36):
Yeah.

Austin Padgett (52:39):
They kind of announced, “Hey, we have bigger plans than just maybe three stores.” Maybe they still do, and they’re looking at that. I should tell you, Teddy’s is pretty scrappy as a defendant in going through their filings. Teddy’s says that its marks lack the salient elements that Buc-ee’s has emphasized in other cases. They’re picking up on, “Hey, these dynamics have changed over time.” That usually you’re looking at something for an animal similar to a beaver, a cartoon animal within a circle, a yellow background and a black circle or something, a right-facing angle. None of those is present. They’re trying to say, “Hey, the dynamics of what you’re counting as your mark continue to change.”

Rusty Close (53:02):
It’s a moving target, yeah.

Austin Padgett (53:25):
Yeah, as far as kind of what the scope of your protection in your mark is. Teddy’s uses Buc-ee’s own words against it, citing the “beaver-invoking elements” language from earlier complaints. They attach tables cataloging all these cases, which is an interesting tactic to do of like, “Hey, we’re going to pin you to your own enforcement history here.” I don’t know that it necessarily works, but it is… They’re scrappy and they’re calling it out. They also have a series of counterclaims.

Rusty Close (53:40):
Ooh, nice.

Austin Padgett (53:54):
Yeah. One fun thing… Going back to the toothpaste ad is that they go through and they say that Arch Aplin, you know, the Beaver…

Rusty Close (54:04):
Sure. The founder, yeah.

Austin Padgett (54:06):
Who put this whole thing together, has explained that his nickname came from a cartoon character named Bucky Beaver, and that he derived the Buc-ee’s logo from the character. Bucky Beaver was famous in the 1950s to ’60s, apparently an animated commercial character created by Disney, it sounds like, for Ipana toothpaste. Whether that’s true or not, that’s in the allegations. They also go kind of on the offense with these counterclaims, and they allege that Buc-ee’s registrations and allegations of fraud on the USPTO, which are very difficult claims to make.

They also have an antitrust claim. I took a look at that, probably bound to fail as well, but that’s for another different podcast that the firm puts out. But Buc-ee’s response is that they filed a motion to dismiss, and that’s where we’re at in that case right now. They’re battling it out as to whether these counterclaims will stand. Buc-ee’s is saying they’re not well-pled, there’s not enough pleading in the factual material to be able to substantiate these claims sufficiently. That’s where we’re at.

We’re coming down to kind of the big question, Rusty, of how has Buc-ee’s strategy evolved? Well, we started out kind of with this name concept. We had this issue where we started out with the coexistence agreement, but it really didn’t seem to hinder Buc-ee’s on its other elements, particularly its mascot. You kind of go, early on you have detailed element-by-element descriptions in these early Texas cases, and you get a jury verdict in one case. Then you kind of expand, and as Buc-ee’s goes national, the accused animals change. You get ducks, dogs, a mongoose, moose, a bear, and the list of comparative elements gets shorter and shorter, because you’re only finding one or two things to really pin them on and trying to build a case around that with other indicia, like having a statue, things like that.

That has been the evolution of the case. I think that’s part of what is kind of owed to the description of what John Oliver’s piece that he did. If you take that for what it is, you have a fun, pop kind of trademark piece and takedown. I don’t know that it stops Buc-ee’s, because there was a case filed right after it. It probably had been in the works for a while, but it was weird timing. You also have now platformed Buc-ee’s as, they don’t do… It’s almost the prophylactic effect of, “Hey, just be aware Buc-ee’s is very aggressive here, so be careful,” doing some of the heavy lifting for Buc-ee’s by making it more well-known.

Rusty Close (56:46):
It almost seems too, to me, like the bigger Buc-ee’s gets and the more well-known, it seems like it’d be harder and harder to make a case for likelihood of confusion, just from a common sense standpoint. Because it’s like, well, no, I mean, who’s going to be confused about that? It’s kind of like you were saying, the different scale, the size of the store in Georgia versus the size of a Buc-ee’s. It’s kind of like, “What are you talking about here?”

Austin Padgett (57:14):
I would say, though, it’s relatively rare that the courts would punish any brand for its fame.

Rusty Close (57:20):
Yeah. Okay. Yeah. Okay. All right.

Austin Padgett (57:24):
To your point, it doesn’t actually jibe all the time. It should probably still be a very factual question as to what’s going to happen at the consumer level. But I would tell you, kind of in practice, it’s hard for a court to look at a huge brand and say, “Eh, you’ve become too big to fail in that instance,” that nobody’s going to be confused because you’re so big, nobody could be that big. It’s tough that way. Any other final thoughts you got, Rusty?

Rusty Close (57:58):
No. I mean, we keep… This is evocative, I think, of some of the other episodes, but this is certainly an interesting one, and people are definitely aware of it. I was at a thing with some guys over the weekend, a fishing trip, and somebody mentioned, we were talking about the podcast, and they said, “Oh, have you ever thought about doing one about Buc-ee’s?” It was on the mind of people. They’re aware… People are aware of what’s going on.

Austin Padgett (58:21):
Well, shout out to everyone for hanging in there. I know we’re pretty long. I’ll try to tighten up an episode here or there, but we got to hit those Golden Globes.

Rusty Close (58:26):
That’s right. That’s right.

Austin Padgett (58:32):
Thanks for listening. If you enjoyed today’s episode, hit like and subscribe, and give a five-star rating while you’re at it. We deserve it. We’re worth it, I think. Go for it, and it keeps us inching closer and closer to that precious Golden Globe nomination that we’re really seeking. But remember, whether you stop for the brisket or for the bathrooms, there’s No Infringement Intended.

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