WOODSTOCK - 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.
Enlarge Photo Marty Klinkenberg/Telegraph-JournalRandy Nicholson, Woodstock businessman, has been accused of infringing on a trademark 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.
"I'm just a Carleton County boy."
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.
"I really don't understand this,'' Nicholson said. "It is not like I was making money off of Darrell Waltrip's name. It's a word for goodness sakes- 'boogity' - and I am not even sure it is a real word. It's a redneck word.
"If I had a million bucks I'd be nose to nose with him."
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.
"I never dreamed in a million years that something like this could ever happen,'' he said. "I've been open for eight years, but now I have had to take my signs down, and people driving past think I am closed.
"I used to like Darrell Waltrip, but I think if I had him here now, I'd tear out his wind pipe."
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 cheques, change the way his phone is listed, and set up a new website.
"Basically, it stinks to be me right now," Nicholson said. "All I can do is come up with another name and pay all of the fees - and then cross my fingers and hope nobody else wants it eight years from now."
Even if he is no longer keen on Darrell Waltrip, Nicholson remains a NASCAR fan.
The words "I'm not speeding, I'm qualifying,'' are written at the top of his front door, "I'm not tailgating, I am drafting" are written at the bottom.
In a display case, he still sells die-cast cars, including replicas of models driven by Dale Earnhardt Jr., Tony Stewart, Bobby Labonte, Sterling Marlin and Michael Waltrip, who is Darrell's younger brother.
"I told my lawyer that when he sends a letter to Darrell Waltrip's law firm telling them I have agreed to comply, at the bottom I also want him to tell them they can go pound sand,'' Nicholson said. "What this boils down to is who has the most money. For Darrell Waltrip to be threatened by me, come on.
"It is a little much."
Marty Klinkenberg is contributing editor of the Telegraph-Journal. He can be reached at email@example.com