It takes steady persistence and money to successfully run a small business, and Whatcom County resident Christine Palmerton is finding it’s the same deal when it comes to protecting a brand.
Palmerton owns Nautigirl Brands LLC, which sells clothing and other products geared toward boating enthusiasts. Since January 2013 she’s been in a trademark battle with global clothing giant Nautica, which contended her logo and company name were too similar, even though Nautigirl already had trademark approval. Nautica’s logo is an outline of a spinnaker sailboat, while Nautigirl’s cartoon logo has a woman holding a martini while standing behind a ship’s wheel.
Nautigirl won its trademark battle against Nautica in October 2015, when the U.S. Trademark Trial and Appeal Board ruled the Nautigirl name and logo was not similar enough to Nautica to warrant canceling Nautigirl’s trademark.
But there’s a wrinkle in the 2015 ruling: The trademark in question applied to a certain category of products such as mugs and glassware. Nautigirl mostly sells clothing and wanted to license products like shirts and hats. At the time Palmerton registered for her trademark in 2008, there was a trademark in clothing for a lingerie company called Naughty Girl. On the advice of an attorney, Palmerton decided not to add the clothing class because the names were too close.
By the time Palmerton won her case against Nautica in 2015, the lingerie company had given up its trademark, so Palmerton decided to apply for that trademark so she could license her clothing. Nautica objected and the two companies are back before the U.S. Trademark Trial and Appeal Board, which decided in late April the case needed to proceed. A ruling isn’t expected until July 2018 at the earliest.
The fact the board didn’t issue a summary judgment rejecting the objection was stunning news to Palmerton, who once again has to focus her attention and money to fight a company that has a lot more resources than her.
“I can’t believe this is still happening,” said Palmerton, who has spent the past couple of months doing media interviews and going to social media with the hope of getting help from the community. “I didn’t have a suspicion that they would try this.”
In winning her 2015 case, Palmerton relied on Eve Brown, who at the time was the director of the Intellectual Property and Entrepreneurship Clinic at Suffolk University Law School in Boston. The clinic took on the case pro bono, using third-year law students who wanted to gain real-world experience.
Brown is now a managing partner at a private practice and can’t take on Palmerton’s case for free. For Palmerton, that means raising money for a legal defense fund, which is happening through a GoFundMe account. Local businesses are also pitching in to help. Masquerade Wine Company is having a wine and food fundraiser on Thursday which will include a silent auction and raffle of items from local businesses.
The previous case between Nautica and Nautigirl would have cost Palmerton around $200,000 in legal fees if the work had not been done for free, Brown said in October 2015.
“I hate this,” Palmerton said, referring to the idea of asking for donations for her defense fund. “I love to give back to the community and it hurts being forced to do this.”
The decision to hear Nautica’s objection also came as a disappointing surprise to Brown, given “the unequivocal nature of the board’s decision” the first time. She said she understands the board’s desire to grant every litigant a day in court, but the prior case had 149 filings and every argument that could be made was given and denied.
“Honestly, my heart breaks for Christine, knowing how difficult the first case was for her, and now seeing Nautica come after her all over again,” Brown said. “She should be able to enjoy (the victory) and go back to focusing on her business, but instead she remains in the trenches with Nautica.”
Brooks Bruneau, an attorney representing Nautica, said the company does not comment on pending litigation.
Many big companies are very protective of their brand and aggressively go after smaller companies with cease-and-desist orders. Brown said the trend hasn’t slowed down since she took on Nautica four years ago. She left academia to launch her firm Bricolage Law specifically designed to represent the small-business owners in similar situations.
Palmerton was just getting ready to ramp Nautigirl back up. She wanted to license her products, which would create new opportunities to hit other markets. She currently sells her products online and at the Bay to Baker Trading Company in Fairhaven – the Bay to Baker store has also been pledging a portion of its sales of Nautigirl products to her legal defense fund.
“So many strangers have been stepping up to help,” Palmerton said.