The Franchise Memorandum

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.