To the debate over whether the Barns of Wolf Trap vs. The Barns of Rose Hill is a good idea, I thought I’d add the perspective of a longtime acquaintance with many years experience in intellectual property, specifically copyright and trademark law. She thinks Wolf Trap is solidly in the right, and sums up the sentiments I’ve heard from others in the legal world. Here’s what she said:
“I think Wolf Trap is doing the right thing – their mark becomes diluted if they let others use it and it sets a precedent for others to try and use the name and use Rose Hill as proof that Wolf Trap does not adequately police its marks. Wolf Trap has invested a lot of money and time to create “THE BARNS” as their brand and to let another entity use that name (especially since they could be considered a sort of more rural branch of Wolf Trap) doesn’t afford Wolf Trap the rights they have earned. Rose Hill should not be permitted to trade on the goodwill of the many years Wolf Trap has put in to the mark.
“It’s a great David vs. Goliath story but it happens all the time – especially with small entities like Rose Hill who do not have the wherewithal to check the trademark registry or do the due diligence for existing use. Seems a little naïve to think that this organization thought they could use the name of a very well-known venue. Adding Rose Hill to the name does seem a little misleading as well. There is a lot of case law about this. Even if Rose Hill has been around longer than Wolf Trap in terms of using “The Barns” name it really won’t matter since you have to establish that Rose Hill had interstate commerce before Wolf Trap did. Unlikely.
“Having said that – the list of remedies in your story will certainly be reduced. I predict they will receive the injunction, have to destroy its marketing materials but there will be no damages or legal fees awarded. I don’t understand why Wolf Trap didn’t file anything with the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB), or at least I couldn’t find the filing. But now that I think about it – that might be why Wolf Trap sued. I don’t think you get damages from a TTAB ruling (and the TTAB takes a while – the courts are surprisingly fast, especially if they filed in Alexandria).”
So that’s how my sister, Betsy Porter, breaks it down. Doesn’t sound good for Rose Hill in the courts. But the court of public opinion? That jury won’t be so concerned with trademark registry and interstate commerce.
[UPDATE: Ann Lesman, chair of the Rose Hill board, posted a note on their Web site Monday saying she and another director had met with Wolf Trap Foundation CEO Terrence Jones. “We are optimistic that a mutually agreeable solution can be found. We look forward to making an announcement soon,” Lesman said.]