Market Square Threatens Legal Action over Bearden's First Friday

At 4 p.m. on Dec. 4, the intersection of Summit Hill and Gay Street is choked with cars, even though festivities at the popular First Friday monthly art and culture celebration don't officially begin for another hour. Market Square is abuzz, shops are teeming, and Gay Street is already lined with onlookers—despite a considerable early-winter chill—anticipating this year's Santa Claus Parade, which doesn't kick off until 6:30.

But unlike years past, there's another game in town on the first Friday before Christmas. And by 6 p.m., select shops in The District in Bearden are populated by clusters of well-dressed patrons enjoying free food and wine from the likes of Northshore's RouXbarb, attending a book signing at Nouveau Classics, and seeing new paintings and sculpture at Hanson and Bennett galleries.

Yes, it seems there are two First Friday arts celebrations in Knoxville now—which raises the question of whether the relatively new First Friday in The District is complement or competition for the like-named event that has been conducted downtown for six years. And further, can either district lay sole claim to the First Friday name and concept, which originated elsewhere and has been used in many other cities across the country for 20 years?

Those queries were posed publicly in November on The Blue Streak, a blog operated by local P.R. potentate Cynthia Moxley. According to Moxley (whose firm, MoxleyCarmichael, represents Bennett Galleries), tempers flared at a meeting between District representative Bebe Vogel and Market Square District Association President John Craig at the office of Mickey Mallonee, director of the office of special events for the city of Knoxville. Moxley reported that Craig was upset that Bearden had chosen to stage a like-named and like-themed event, and that the contentious summit resulted in dueling epistles, including a cease-and-desist letter to The District from a downtown patent/trademark attorney.

But District folks seem undaunted by Craig's displeasure, and the implied threat of legal action. "I wouldn't call the situation a controversy," says Vogel, marketing and public relations representative for The District, a four-year-old advertising co-op that encompasses 26 locally owned businesses between Sequoyah Hills and Bearden Hill. "As far as we're concerned, the controversy is only on one side."

Asked for comment, Craig says, "I feel it's best MSDA not have any further statement, and move ahead with our plans. We have an event we've worked on for six years, and we certainly want folks to come out and enjoy."

Many Knoxvillians are already familiar with downtown's First Friday—a festive gallery walk that has been filling downtown businesses with patrons on the first Friday of every month since 2003—and its emphasis on visual arts with some free food and wine and a selection of musical entertainment thrown in for good measure.

"The downtown event has really grown over the years; it's become a huge success," observes Mallonee. "On those nights, the restaurants are packed. And the art galleries have some wonderful openings."

This year, Bearden decided to join the party with its own First Friday event, prompted by a suggestion from a local PR firm. It's not clear which PR rep originally suggested that Bearden stage its own First Friday; Vogel herself says she doesn't know. "In discussions, we decided it would be a good idea," says Vogel. "We felt it was a situation where it could only benefit everybody."

As to why The District chose to host its event on the same night as downtown, Vogel says, "It's an idea that's promoted throughout the country. Why try to reinvent the wheel? We acted in good faith. It didn't cross our minds that this would be a competitive situation."

Mallonee says the downtown contingent at the summit meeting was upset, "taken aback" by the fact that the Bearden group had chosen to use the same name and the same night they had worked to establish as their own, at least in Knoxville. "Both sides stated their case, and I think they agreed they would step back and look and see what could be done," she says. "But I don't know that they've had any meetings since then."

Complicating matters is the exchange of letters. District President Bob McClellan followed the meeting with a letter to Craig stating the "The District in Bearden will continue to hold its First Friday events on the current schedule… [and] continue to market our event as needed to support our efforts." McClellan concluded that "we are complementing what is happening downtown with our own events on First Fridays."

McClellan received his response in a letter from the Gay Street law firm Luedeka, Neely & Graham dated Sept. 17. The missive demanded that The District choose a different name, and possibly a different day, for its event, on the grounds that Bearden's use of the First Friday name might take up both consumers and sponsorship dollars that might otherwise go to the downtown celebration.

It called The District's event "an infringement of our client's [the MSDA's] rights… and trademark infringement," and threatened to restrain Bearden's use of the name by "whatever measures are necessary."

Opinion among other downtown proprietors and MSDA members seems to be a mixed bag. Some say they weren't aware there was any dispute over the First Friday concept, and don't have qualms about Bearden's appropriation of the name.

"It's perfectly within their rights," says MSDA board member Ken Knight. "Imitation is the greatest form of flattery, and I'm not going to fault those folks for trying to increase their business."

But a few proprietors say they did discuss the possibility that another First Friday recognition could cause consumer confusion and lower visitor counts, and that they wish Bearden had handled its event differently.

"It seems peculiar they chose the same name and day," says Scott Schimmel of Market Square's Bliss. "I see their argument, that they're just expanding on what we're doing. But the fact is, there is going to be a certain level of competition. Knoxville is only so large."

Another downtown business owner, preferring to remain anonymous, remarks that, "If the situation were reversed, I think you would hear some gnashing of teeth over in Bearden instead."

None of the downtowners Metro Pulse canvassed say they knew anything about the attorney's letter, however. In response to that letter, Vogel says: "We sought advice from several other attorneys. They told us the First Friday concept is not something anyone really owns, that it's celebrated throughout the country. They felt the letter was mainly just a bullying tactic."

And it's true: The First Friday name has been used by many U.S. cities, in reference to regular city-wide public celebrations; to gallery hops and art walks; and to social networking events, often held for African-American professionals in particular, a practice that dates back to the mid-1980s. Knoxville has a First Friday recognition for social networking in its African-American community as well. The earliest known use of the title in Knoxville came in the late '90s, when local artisan Preston Farabow staged his Bacchanalian First Friday celebrations underneath a cluster of interstate underpasses just outside downtown, also known as the Spaghetti Bowl. Farabow's event was a tetherless arts free-for-all, accompanied by live rock 'n' roll, iron-pouring, incendiary devices, and rumors of participants in stages of undress.

There's often plenty of overlap among the different conceptions of the First Friday recognition nationwide, as many cities offer special social networking opportunities (such as First Friday Happy Hours) alongside gallery openings and other public events. Besides Knoxville, Oakland, Philadelphia, Denver, Boston, Nashville, and Tucson, Ariz. are but a few of the dozens of cities which host First Friday events of various sorts nationwide.

According to attorney Robert Pitts of Pitts and Brittian, a local firm that specializes in patent and trademark law, the ubiquity of First Friday events makes it unlikely that anyone hereabouts could lay legitimate claim of ownership to either the name or the concept.

"First Friday is a title that's descriptive, and any title that's descriptive is going to be problematic if you're seeking a trademark on it," Pitts says. "The exception would be a title that has acquired a ‘secondary meaning.' That is, an instance where even though a phrase or a title is descriptive, it has come to be known as originating from a single source.

"The problem here—for anyone looking to keep the title for themselves—is that the term First Friday is obviously not originating from a single source. It's used in a number of different locations."

Pitts notes that a group in Charlotte, N.C., was able to obtain a trademark on the title "First Friday of Charlotte," a trademark that has since lapsed. But a man in Raleigh, N.C., on the other hand, was unsuccessful in an attempt to secure a trademark for the title "First Friday" alone.

Vogel feels that the Bearden and downtown First Fridays are appealing, for the most part, to different sectors of the population. "There's a completely different set of businesses in The District compared to downtown," she says. "We're trying to encourage our surrounding neighborhoods to get out and shop."

And it's perhaps worth noting there are some key differences in the two events. While downtown's First Friday is centered around its several art galleries, The District features only two galleries (Hanson Gallery and Bennett Galleries) and thus relies more on other featured entertainments—jazz and symphony groups, radio-station remotes, book signings—at its participating outlets.

It's also less pedestrian-friendly than downtown, though District members are trying to address that concern by providing green, biodiesel-fueled shuttle buses that travel between businesses at 10-minute intervals. Furthermore, The District's First Fridays only happen certain months out of the year, at least for now. And the Bearden area offers fewer stay-till-whenever prospects, such as late-night bars and clubs, than does the downtown First Friday running near and along the Gay Street axis.

For now, there seems to be enough interest in First Friday-type events in and around Knoxville to keep everyone happy; Vogel says The District's event has grown considerably since its inception in April. And even downtowners who take issue with Bearden's tactics admit that they haven't seen any diminishment in their own business since The District's First Friday began.

"Our sales are up over last year; people still go through the food and wine just as quickly," Schimmel says. "Who knows? Maybe it'll all grow to the point where both sides can stay happy."

For the city's part, Mallonee says she hopes the two groups can find a way to peacefully—and fruitfully—coexist. "We will continue to offer support to both," she says. "We feel that the more you have to offer, the better off you are and the more people you reach. We're encouraged that both things are happening."