Tuesday, December 29, 2020

Summary judgment briefs filed in Girl Scouts v. Boy Scouts trademark litigation

The Washington Post has a story, "Girl Scouts rebuke Boy Scouts in escalating recruitment war," that begins:BSA Unveils Name of Program for Older Boys and Girls, Launches “Scout Me  In” Campaign – New Birth of Freedom Council, BSA

The Girl Scouts are in a “highly damaging” recruitment war with the Boy Scouts after the latter opened its core services to girls, leading to marketplace confusion and some girls unwittingly joining the Boy Scouts, lawyers for the century-old Girl Scouts organization claim in court papers.

The Girl Scouts' summary judgment brief is available here and begins:

This is a trademark dispute brought by Girl Scouts to halt ongoing marketplace confusion caused by Boy Scouts throughout the United States, and to prevent further harm to the famous GIRL SCOUTS brand. The level of confusion resulting from Boy Scouts’ use of terms like GIRL SCOUTS, SCOUT, SCOUTS, SCOUTING, SCOUTS BSA and SCOUT ME IN to market its core programs to girls is both extraordinary and highly damaging to Girl Scouts.

On its motion, Boy Scouts asks the Court to ignore all of this and hold, as a matter of law, that confusion and dilution are unlikely, even though the GIRL SCOUTS trademark is concededly famous, the parties’ marks are obviously similar, and the services they offer are, since 2017, directly competitive. This proposition is untenable, and based on a wholly misleading factual presentation that sidesteps or ignores the mountain of evidence of confusion and dilution that is central to this case. Most fundamentally, Boy Scouts repeatedly downplays the momentous change in its business that was announced in 2017, when it decided to abandon its historic identity as an organization that only served boys by expanding to girls its two core programs: CUB SCOUTS and the program now known as SCOUTS BSA, formerly known as BOY SCOUTS. That major change brought the parties squarely into the same market

The Boy Scouts' summary judgment brief, available here, begins:

GSUSA's trademark lawsuit against the Boy Scouts of America (the “BSA”) arising from the BSA's 2018 “Scout Me In” marketing campaign is utterly meritless, and should never have been filed. The BSA is the senior user of SCOUT-formative branding, having been founded before GSUSA. When GSUSA chose to change its name from Girl Guides to Girl Scouts, it assumed the risk that Americans might assume the parties are related. Not surprisingly, GSUSA's own research confirms that half of Americans indeed held that belief as of 2017—before any of the events in question in this lawsuit. GSUSA also has voluntarily associated itself with the BSA for decades, including by participating in joint events and sharing facilities. And, GSUSA deliberately abandoned the use of SCOUT alone at least 30 years ago, in favor of always using GIRL before SCOUT.

GSUSA's present claim that the BSA's 2018 “Scout Me In” marketing slogan suddenly has caused marketplace confusion is bereft of any evidence supporting a causal connection to confusion. The Court should grant summary judgment in the BSA's favor on all claims.

-Joseph Mead


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