If Atlanta entrepreneur O. B. Nizam was asked, "What's in a name?" he could say his dream for his own business.
Or he could say a legal nightmare.
For him, both would be true, even if the name is spelled different ways.
Got that? Nizam is the owner of a small and, he said, "struggling" company called Embodi International which sells hair care and beauty products, mostly online. It's not making money, he said, but he has hope.
Late last year, Nizam learned that Walmart wanted Embodi International's registered trademark of the Embodi name canceled. The Arkansas retailer said in a filing with the United States Patent and Trademark Office's Trademark Trial and Appeal Board that it is the rightful owner of the Embody and Mbody names "for use in connection with various bath, health and beauty products."
Nizam, who registered the Embodi name in 2008 when he said he also first used it, was taken aback.
"Of all the people to pick on, why us?" he asked.
In its filing, Walmart said it has common law rights to the Embody name that date back "to at least as early as 2004," and to the Mbody name that go back to as early as 2007. It said it first used the names in commerce before Embodi International applied for its trademark.
If proven, that claim could trump Embodi's trademark, intellectual property law experts said.
Walmart sought to trademark the Embody name, but not until last year. The patent and trademark office did not grant the request, it said, because of likely confusion with Embodi's trademarked name.
In its cancellation petition, Walmart said Embodi's trademark "is confusingly similar to Walmart's Embody and Mbody marks and is likely to cause confusion and deceive purchasers ..."
Walmart spokesman Greg Rossiter said, "We have priority rights to the Embody trademark. We're simply protecting those rights."
Nizam said he hasn't been able to determine when or where Walmart might have first used the Embody name on products.
If Nizam chooses to fight for his right to the name, Emodi International faces what could be a long and expensive battle. The schedule of legal dates in the case already stretches into March 2012. Nizam said he doesn't have the money to pay attorneys to take the case and he doesn't have the expertise to do the work himself.
Joe Paparella, managing partner of Paparella & Associates, a trademark and patent law firm with offices in Atlanta and Michigan, said such a battle would be "hugely costly." Conflicts over trademarks and the right to use marks are quite common, he added.
The case could die and Walmart could triumph if Embodi International is not able to continue the fight. But Nizam said he hasn't given up yet. He said he came up with the the name Embodi (short for embodiment) more than a decade ago and that it took him years to start the business, register the trademark and get products like scalp nutrition ointment, daily moisturizer, shampoo and conditioner to market.
"I think Walmart figured it would be easy," he said.
