A federal judge in Seattle has denied a franchisor’s motion for a contempt order to enforce a consent judgment obtained against an accused trademark infringer and his company. Two Men & A Truck/Int’l, Inc. v. T&S Transp., Inc., 2014 U.S. Dist. LEXIS 4759 (W.D. Wash. Jan. 13, 2014). In this case, Two Men and a Truck had sued the defendants for trademark infringement based on their use of various iterations of the plaintiff’s trademark, TWO MEN AND A TRUCK, in connection with moving services identical to those offered by the franchise system. In a consent judgment resolving the dispute, the defendants had agreed to a permanent injunction restraining them from using the mark, “or any colorable imitation thereof including without limitation ‘Two Men & a Truck,’ ‘2 Men and a Truck’ and ‘2 Men & a Truck,’ “whether alone or in combination with other terms such as ‘Special,’ in any manner whatsoever.”
Two Men and a Truck subsequently became aware that the defendants were promoting their business with phrases such as “Two Men & A Moving Truck,” “Two Men and a Van,” and “Two Movers and a Truck.” The court held that the consent judgment was not specific enough to warrant a finding (under the clear and convincing evidence standard) that the defendants had violated it. Although the term “colorable imitation” has a specific meaning in trademark law, the court found the term could be considered vague by the pro se defendants. Further, although not exhaustive, the consent judgment’s list of proscribed permutations of the phrase “Two Men and a Truck” could have led the defendants to believe that only words and symbols that amounted to those very phrases violated the judgment, and that the phrases they were using were not prohibited. In its only concession to Two Men and a Truck, the court did note that despite the ruling that the defendants had not violated the consent judgment, the defendants “remain subject to consequences if they are infringing Plaintiff’s trademarks or otherwise violating the law.”
The decision is a cautionary tale for lawyers concerning the care that needs to be taken in drafting consent judgments. In this case, Two Men and a Truck found itself before an unsympathetic judge who narrowly interpreted the restrictions imposed on the defendants and also found ambiguity in the language of the consent judgment. The fact that the defendants were not represented by counsel also influenced the judge to rule in their favor.
Maisa Frank represents clients in a variety of litigation matters. Whether conducting pre-dispute investigations, navigating litigation, or negotiating resolutions, Maisa’s advice and strategy is vital to clients facing ...
The information contained in this post is provided to alert you to legal developments and should not be considered legal advice. It is not intended to and does not create an attorney-client relationship. Specific questions about how this information affects your particular situation should be addressed to one of the individuals listed. No representations or warranties are made with respect to this information, including, without limitation, as to its completeness, timeliness, or accuracy, and Lathrop GPM shall not be liable for any decision made in connection with the information. The choice of a lawyer is an important decision and should not be based solely on advertisements.
About this Publication
The Franchise Memorandum is a collection of postings on summaries of recent legal developments of interest to franchisors brought to you by Lathrop GPM LLP.
To subscribe to monthly emails for The Franchise Memorandum, please click here.