The Car Washer’s Car Washes

You’ve just started working as a full-time lawyer for Barbara Billingsky. It’s been a radical change to your career plans. When you were wrapping up law school, you had expected to pursue a more normal first lawyer job. But then one of the papers you wrote as a law student ended up in Barbara’s hands. And she offered you an eye-watering salary to come work for her.

Barbara Billingsky is a self-made billionaire. A law-school grad who never practiced law, Barbara built her fortune by taking major ownership stakes in corporations, pushing management to make changes, and then profiting from the subsequent increase in value. Barbara’s way of doing things – finding undervalued businesses, cleaning them up, and then revealing their shiny value – caused stock-market pundits to nickname her “the Car Washer.”

It's your first day in the office, and you’re just looking around the office you’ve been assigned.

“Law Paper!”

It’s a loud voice calling you – as if Law Paper were your name. You wheel around to see Barbara standing in your doorway.

“I’m glad to see you’ve settled in,” she says. “I told my people, I said, get Law Paper down here! Because I’ll tell ya, I haven’t thought much about law since law school. Multifactor tests! Balancing prongs or whatever! I decided the most complicated doctrine I’d ever need is ‘Buy low, sell high!’ But here’s the thing. Over the years I’ve found that law has really screwed some stuff up for me. Lost a good bit of money here and there. But that’s okay, because in business, one person’s loss can be another person’s gain. So that means, going forward, complicated law can make for some nice opportunities for me if I can just see’em. That’s why I hired you, Law Paper! You’ve got a bead on the 12th Circuit!”

Yes – your law paper. You chose as your topic a strange proposal floating around to create a new appellate court, the U.S. Court of Appeals for the 12th Circuit, cobbled from the states of Arkassippi, Connectichusetts, Marylvania, Tennebama, and Wyorado. Somehow the proposal became law. And because the 12th Circuit was assembled from pieces of so many different existing circuits, Congress specifically provided – and the judiciary has since confirmed – that no court cases from any other circuit will be considered binding precedent in any 12th Circuit litigation.

Your paper – that Barbara apparently loves – analyzed how a newly created 12th Circuit might approach trademark law given the wide array of judicial approaches taken across the federal court system.

“So here’s my 12th Circuit thing for you to figure out,” Barbara continued. “I’ve already bought low. I recently acquired three different car wash businesses, which happen to be spread across the states within the new 12th Circuit. And I’ve got a dispute with a car wash business in a different state that’s in the 12th Circuit. Now if I’m gonna be able to sell high, trademark law’s gonna be key to figuring out how to get that done.

“All of my acquisitions are of ‘tunnel’ car washes. That’s what the industry calls those really big automated car washes – because the car proceeds through a tunnel, moved along by a conveyor, going from one piece of washing equipment to the next.

“One acquisition is Cassette Clue with 12 locations across Connectichusetts. The business uses that name on signage, coupons, receipts, and uniforms of employees, as well as billboard advertising around the state. The founder and proprietor of Cassette Clue came up with the name by going to a website that randomly selects words from an English-language dictionary. The founder pressed the ‘Generate Random Word’ button a dozen times before he got ‘cassette,’ which he thought sounded pleasant and had no negative associations. And then, looking for something alliterative, he selected an option for generating only words that start with ‘C,’ and after seven tries he got the word ‘clue.’ Similarly, he thought it was pleasant sounding and didn’t have negative connotations. Personally, I think it’s a weird trademark. But oddly enough, people seem to like it precisely because it’s so quirky. And buying audio cassette tapes is a hipster trend. At any rate, a concern our trademark search report turned up is a store that repairs, cleans, and refurbishes computers – and now tablets and smartphones. It was started in the 1980s and has federal registration on the principal register for Diskette Do for ‘computer repair and cleaning services.’ The word ‘diskette’ refers to the old floppy disks that were used to store computer data and ‘do’ refers to the common verb, meaning ‘to undertake some action.’ They’ve never done anything beyond their one store in the Pacific Northwest – thousands of miles from Connectichusetts.

“My biggest acquisition is MeerMeb, which has 36 locations in Marylvania. That name was just made up out of nothing. The guy who created that business is a computer software geek. He coded a script to randomly produce syllables from all possible syllables in the English language based on all the rules linguists have figured out for how consonant and vowel sounds can be combined. He ran the program to produce five results that didn’t correspond to any words in a list of the world’s major languages. Then he picked the least weird of the five and did the trendy capital–letter-in-the-middle thing: MeerMeb. I personally think MeerMeb is clumsy and ugly, but it’s really caught on in Marylvania. The brand is really well-known up there. I had a researcher go to Marylvania, pose as a consumer in the market to buy a used car, and express concern to the salesperson about rust from all the salt they use on the roads in the winter. Almost half of the salespeople said not to worry because the previous owner of the car they were looking at had a MeerMeb membership for unlimited car washes. There’s no reason to believe those sales people were telling the truth about the cars they were trying to sell, but I considered it strong evidence that MeerMeb has come to be known by the public as specifically designating a source for a really high-quality car wash that’s worth the price.

“Plus, there’s also this other aspect to the acquisition. MeerMeb is the originator of a new service – they call it a new ‘technology’ – that has really increased cash flow: Engineered Energy Laser Clean. It costs car-wash customers an extra $5. Here’s the thing – I actually feel kind of bad about it – it does nothing at all to make your car cleaner. The service entails lighting effects – there are beams of light shot into the foam. But the service doesn’t use real lasers since, when those were tried, they weren’t all that visible in the foam. Thus, it’s just bright light beams. But people pay for it. Which is ridiculous, because only about 20% of customers, according to our research, are foolish enough to believe that a laser could help clean a car. Those are the ones forking over the five bucks. I mean, maybe I shouldn’t put those people down, because in industrial contexts, high-wattage lasers are, in fact, used to remove rust and oxides from metal surfaces. But those kinds of lasers also strip off paint. You’d never use them on mere dirt! And you wouldn’t shoot them around a car wash! You’d burn and blind people. Anyway, like I said, I do feel bad about it. So I have my people working on having some kind of actual cleaning additive that will go into the foam application when someone buys Engineered Energy Laser Clean. Look, I can’t ditch Engineered Energy Laser Clean altogether. The fact is, it’s a valuable part of the acquisition because we’re licensing the trademark and the ‘technology’ to a bunch of other car washes across the country, and it’s already generating huge cash flow.

“Okay, now the real crown jewel at the heart of the whole project is the business I bought in Tennebama. It’s called Theme Tunnel Car Wash. The name says it all. That’s exactly what it is, a theme tunnel car wash! You know, like ‘theme park’ means an amusement park where instead of just a random amusement ride – like a plain roller coaster – it’s themed as something else – like a runaway mine train. That’s what the theme-tunnel car wash originator – his name is Oren Ong – figured out! Instead of having a tunnel car wash that’s just a wash, you can have a tunnel car wash that’s something else – like an active volcano, or a voyage under the sea!

“Oren’s a mechanical engineer and artist. He invested a lot of energy and capital in the development of his car wash and the theming. In fact, development of the prototype design for the car wash took 12 months. What he wound up with was just fantastic.

“The driver pulls their car up to the payment kiosk and selects a car wash service level: Basic Car Wash, Deluxe Car Wash, or Supreme Theme Wash. Pretty much nobody selects Basic or Deluxe, because they’re like a normal car wash except that they’re slightly more expensive than competing local car washes at those service levels. When you select Supreme Theme Wash – which, by the way, is much more expensive than competitors in terms of the service level of the washing itself – the customer selects from among three themes. Then you’re instructed to tune your radio to a particular FM frequency, and you drive into a walled, shaded area where you have to make this looping right turn to go into the tunnel building. This shaded turn-around takes up a lot of real estate, but along with a similar structure at the exit, it helps keep the wash tunnel much darker for the theming. Once you’re in, what happens next depends on the theme you selected.

“Probably my favorite is the ‘Volcano!’ theme. Big, brightly illuminated globs of fluorescent yellow and orange foam – looking like blobs of lava – get lobbed at your car. Whirling firenados – really side-panel brushes with light effects – threaten your car from both sides! Then a curtain of glowing fluorescent yellow and orange lava foam pours over your windshield. Haha - it looks like you’re gonna die! Your car goes through the image of an ash cloud projected on the reciprocating mitter curtain, and then there’s a break in the action. An animatronic scientist-slash-nature-ranger appears, pointing the way out of danger. The rinse and clear-coat application are presented as a cooling rain that solidifies the lava that would have overtaken you. Finally you pass through the drying hot-air blowers that are made to look like volcanic thermal vents.

“Another choice is ‘Under the Sea.’ As soon as the conveyor starts to take your car forward, there’s a massive amount of bubbles – useless from the perspective of actually washing your car, but super fun, because the theming idea is that you’re headed underwater. Blub-blub-blub sounds from the radio, and there are lots of undulating green and blue lighting effects. Pink and green sea anemones – really rocker brushes – whirl around to scrub your car. Animatronic fish and mer-people come toward your car and then dart away. The mitter curtain appears like the dangling tentacles of a giant jellyfish!

“Finally, there’s the ‘Tunnel of Love.’ Lots of reds and pinks. Heart shapes are projected on the foam on the windshield and side windows.

“That ‘Tunnel of Love’ is a huge make-out opportunity for teenagers! Heck, in the three cities in Tennebama where Oren’s opened one of these car washes, it’s become a massive hit with the youths! You know: ‘Who’re you dating? Have you gone through the Theme Tunnel with them yet? Have you gone through the – giggle, giggle – Tunnel of Love?!?’ You can imagine. We’ve got all that data from messaging apps – anonymized of course - from our tech industry partners.

“The words ‘Theme Tunnel Car Wash’ are famous in the state of Tennebama at this point – close to 70% of people surveyed in malls and airports recognize the mark as indicating a company providing car washes with theming in the tunnel. And the business has been enjoying huge success even with steeply increasing prices.

“Oren’s received great press for Theme Tunnel Car Wash. The big three trade publications – Car Wash Magazine, Professional Carwashing & Detailing, and Auto Laundry News – described Oren’s business, respectively, as a ‘radically new kind of car wash,’ ‘a different kind of car wash experience,’ and ‘a tunnel of theme.’ Two national general-interest newspapers also reported on the car wash, one calling it ‘the most original approach to selling car wash services’ and the other saying it was ‘revolutionizing getting your car washed – a festive washing atmosphere with bright colors, animations, lighting effects, and sound continuing the theme throughout.”

“I’m informed that, technically, Oren’s car wash is what’s called a ‘dark ride,’ which is a term that describes an indoor amusement ride on which persons who are aboard guided vehicles travel through specially lighted scenes, generally with an accompaniment of sound, music, special effects, and some kind of animation.

“Dark rides go way back. Tunnel-type mechanized car washes originated in the 1940s and 1950s. But dark rides go back to the late 1800s. The intent of a dark ride is to tell a story with thematic elements that are immersive for the people traveling through. They’ve long included pretend dangers, and the “tunnel of love” – most often realized in the form of a canal that propels riders in boats – is one of the oldest. When you think about all that, it’s just astonishing to think that it’s taken this long to re-conceive of the automated tunnel car wash as a dark ride.

“There are academics who study dark rides. They say that the storytelling aspect, mediated by immersiveness, creates in riders an emotional attachment to the dark ride. So that might explain some of the success of Oren’s business.

“But prestige is a huge part of the appeal. This is such a dang expensive way to get a car wash in Tennebama, it’s hard to explain the success of it without appreciating its role in the courting behavior of Tennebama residents. That is to say, laying out the bucks for a Supreme Theme Wash is a surefire way to impress a date. Especially in towns where malls have closed and movie theaters have gone into the dump.

“It’s all very wonderful. But my budding car wash empire has a bur under the saddle. Its name is Adventure Alternatives Car Wash, which has one location in neighboring Arkassippi. It’s a blatant knockoff owned by woman named Karla Kayton. She flat out copied us.”

At this point, you finally interrupt Barbara. “How could you know?” you ask.

“Oh, it looks like she was on her way back from the big industry trade show, The Car Wash Show, held in May in Nashlanta by the International Carwash Association. She went through one of Oren’s car washes, bought Supreme Theme Wash, chose Volcano!, and when she was done, she turned right back around and did the car wash again and again until she’d done all the themes twice. When a car went through all those times in a row – which is very expensive – Oren heard about it and checked the security footage. Karla had her phone out filming the whole time. Oren saved the videos of her doing it. He recognized her face from a profile in Auto Laundry News. Besides, a few weeks later, Karla called up wanting to get a license from Oren to do the theming with her Arkassippi car wash business. Oren told her no thank you, but she did it anyway!

“Karla’s Adventure Alternatives Car Wash opened up three weeks ago. One location only. She’s done essentially nothing to advertise it. Maybe she’s running low on cash after shelling out to add all the theming. But what she’s got is an embarrassing, lousy knockoff if you ask me. I took my old 2022 Lamborghini through it. Here’s how it works. At Adventure Alternatives Car Wash, when you get to the payment kiosk you get a choice of ‘volcano theme,’ ‘sea theme,’ ‘love theme,’ and one other theme I’ll tell you about in a bit.

“The volcano theme, sea theme, and love theme have all the elements, respectively, that I described to you for ‘Volcano!’, ‘Under the Sea,’ and ‘Tunnel of Love,’ except they don’t look nearly as good. Honestly, they are a cheap, shoddy imitation. The facilities that Oren built have these extra long tunnels and shaded turn-arounds at the entrance and exit, which keep the tunnel extra dark inside. Karla’s Adventure Alternatives is just a regular car wash that’s had these theming elements crammed inside. There aren’t any modifications around the tunnel ends, so there’s typically lots of sunlight streaming in, overwhelming the lighting and effects and revealing all the machinery-looking parts. And the elements are packed in so tightly that it’s just like a bunch of cheap, hokey crap coming at you. As far as the theming, it’s a bad-quality experience. And it’s priced correspondingly cheap. I think legally it’s what they call ‘dilution.’ Ha! I’m not much of a lawyer, but I do remember some bits from what you wrote, Law Paper! Oh, the washing job is fine. Pretty much the same as ours. Most good tunnel car washes are pretty much the same in terms of the actual washing.

“Okay now, the other theme at Adventure Alternatives is ‘Severe Storm!’ I think it’s just a thin re-hash of our ‘Volcano!’ theme. Instead of big fluorescent yellow and orange blobs of ‘lava,’ you get little globs of white foam that pelt your car, and, with the sound effects, that’s supposed to be hail. Then the whirling firenados are lit differently and called tornados. And the big foam dump has graphics projected on it to look like a big wall of tornado and whirling debris coming at you. Also there are lightning flashes. The rain part is the same as the ending of ‘Volcano!’ They don’t bother to pretend the blowers are anything more than more wind.”

“Now Karla has hung a banner sign in front of Adventure Alternatives that says ‘Don’t drive 50 miles and blow a week’s wages on a theme tunnel car wash – try Adventure Alternatives Car Wash instead!’ That’s infringement right there, right? Thanks to our working partnerships with tech companies, my data analytics people have been able to determine that we’ve lost two sales because of Karla’s sign.

“Okay, now, Law Paper! Help me figure out what to do! Do I sue Karla? If I do, will I win? Do I give in and grant her a license to all the theming, design, and so forth? If so, do I hold out for a huge fee? Or should I give her the license cheap? I gotta know my bargaining strength in terms of the legal merits. What I’d really like to do is charge Karla a substantial amount – yet something she can afford – for a one-year license for full rights to use the theming in her current location and one additional location, and with no oversight at all by anyone on my side. Give her free rein. I’d have that renewable upon mutual agreement every year. But when she’s invested in a second location, I’ll just say I’m not renewing and she has to remove all the theming. I know, it sounds mean. But I didn’t produce billions of dollars of value for Wall Street by worrying excessively about being nice.

“Now, maybe I should just buy Karla out. But to decide whether and how to do that, I need to figure out the proper valuation. And for that, I need to know my prospects of winning a claim against her in litigation. I also need to know my prospects of being able to protect the car washes with the dark-ride-style tunnel experience against copycats. I want to protect the theme-tunnel style of car wash nationwide. I want to expand all across the country.

“When I eventually join all these car washes under one brand, which makes sense from a marketing perspective, I need to decide if I’m going forward using ‘Cassette Clue,’ ‘MeerMeb,’ or ‘Theme Tunnel Car Wash.’ So I need your assessment of the protectability of those marks. Plus, I need your opinion of ‘Adventure Alternatives Car Wash,’ in case I buy out Karla. I also need your analysis for ‘Engineered Energy Laser Clean.’ So help me out, Law Paper!! Use that brain to help me navigate the legal landscape, make the right business decisions, and make a ton of money.

“Oh, one thing I can make easy for you: I just hired two other law-school whizbangs – one for copyright, and one for patents. So you can ignore patent and copyright completely. They’ve got that covered.”