By Emily Hamann
The Bellingham Business Journal
After a long, exhausting legal dispute, which ended in a historic victory, a Bellingham business owner is gearing up to go back into battle.
After three years, Christine Palmerton won her trademark dispute with clothing giant Nautica in 2015.
Now Nautica is once again challenging her trademark, and this time Palmerton doesn’t have the free legal help she had the last time.
Palmerton, who lives and works in Bellingham, started NautiGirl brands, which she designed as a sassy lifestyle brand for female boaters.
At the time, she owned a yacht charter company, but she sold it to focus on growing NautiGirl.
She has since expanded her brand to include men, dogs and babies.
Her vision is to put her trademark on a huge array of products and even license it out; she wants NautiGirl to serve as an identifier of the boating community, in the same way Harley Davidson has become emblematic of people in the motorcycle community.
She filed for her trademark, and it was awarded in 2009.
Then in 2013, she got a cease and desist letter from Nautica, saying her brand was too similar to theirs.
When she didn’t shut down her shop, Nautica petitioned the U.S Patent and Trademark Office to cancel her trademark, which they could do, since she had held it for less than five years.
“That was a new revelation,” Palmerton said, “that you can pay for a trademark and then anyone can petition to cancel it for any reason.”
She went to see her local attorney, but he said that even though she was in the right, she couldn’t afford to fight the petition.
Eventually, she found Eve Brown, who was teaching at Suffolk University Law School in Boston.
The school has a law clinic, where third year law students, with Brown’s supervision, gained hands-on experience by taking on cases for free.
It took three years, but in the end, the Trademark Trial and Appeal Board sided with Palmerton.
They found that the Nautica’s logo and the NautiGirl logo look so dissimilar, there’s no way customers can confuse the two.
Brown said it was the first time anyone had actually challenged Nautica over a trademark dispute and won.
Now Palmerton and Brown are gearing up for another lengthy battle.
Trademarks are granted for certain classes of goods.
So when Palmerton first applied for hers, she signed up for beverage ware, playing cards, and other categories of products that she sold at the time.
However, a lingerie company already held the trademark for “Naughty Girl” in the clothing category, so Palmerton didn’t register for that class, even though clothing makes up a large portion of her product.
Then that lingerie company gave up its trademark, and once the board sided with Palmerton in the Nautica case, she thought she was finally clear to start expanding her business, and applied to get her trademark to apply to the clothing category as well.
Once again, Nautica is challenging Palmerton’s application. Brown says she expects this fight to be just as long as the last one.
“We tried to do a motion to dismiss the case, because it had already been decided,” Brown said. But the board rejected her motion.
Nautica is making the exact same argument, that Palmerton’s trademark is too similar to Nautica’s and customers are likely to get confused.
In the original ruling, when the board sided with Palmerton, the decision does not mention the type of products being sold as having any baring on their decision.
The board ruled that the marks are nothing alike, regardless of the product the mark is printed on.
Brands like Nautica, which did not respond to a request for comment on this story, are sometimes called “trademark bullies,” because they try to shut down so many businesses over a trademark dispute.
“The goal of these companies that tend to trademark bully is to get a monopoly on a word,” Brown said.
Over the years, Nautica has opposed dozens of different trademarks from companies that use the letters “Nauti” in their name or incorporate a sailboat into their logo.
You can’t just trademark a word, though.
“The law is not ever going to let them do that,” Brown said. “‘Nautical’ is a generic word.”
So instead they send out cease and desist letters and challenge trademarks.
Brown said they’re hoping that the smaller businesses will just get scared and shut down.
And most of the time, they succeed.
“They file these oppositions knowing that the small businesses can’t defend themselves,” Brown said. “They were completely in the right, they just didn’t have the money to fight.”
Brown was inspired, in part, by Palmerton’s case.
She left her job at Suffolk to help found her own law firm that is dedicated to fighting these trademark bullies.
She gets fired up over these kinds of cases, where a tiny business is going up against a massive one, she said.
“I’ve been told I have an overdeveloped sense of justice,” she said.
Brown hopes that once these big companies realize they’ll actually have to spend time and resources defending these petitions, they’ll stop sending them out.
Her law firm, called Bricolage Law, in Boston, is specifically set up to be affordable.
They charge flat fees for services, because Brown said the bigger companies take advantage when they know the smaller businesses have to pay attorneys by the hour.
“They try to drag it out on purpose,” she said.
While Brown is trying to make it easier for little businesses like Palmerton to afford this legal help, she can no longer work for free.
Last time, Brown said that had she been paying for the legal work, Palmerton would have had to spend around $300,000 to win the case.
Cases like this can cost between $150,000 and $500,000, Brown said.
Palmerton has set up a GoFundMe page to help raise money for her legal case.
She said she hasn’t been able to grow her business the way she wants too since the trademark dispute started.
“We haven’t been able to get investors with this legal thing hanging over our head,” she said.
Also Palmerton said she’s seen copycats selling clothing with a similar version of her logo on it — but without the clothing classification for her trademark, there’s nothing she can do.
“If I don’t get my clothing classification, it will just suffocate my business,” she said.
Getting the trademark protection is key to scaling up her business.
She now also sells product under the brands NautiBoy, NautiBaby and NautiDog. She worries what will happen when she tries to register those trademarks, too.
Not only is the legal battle financially draining, but it’s also emotionally exhausting, Palmerton said.
The first time she went against Nautica, she had to turn over her business plan, financials and other sensitive information about her company.
“It’s so personally invasive,” she said. She dreads having to through that again.
But she, too, hopes that her case can help other small business owners, and send a message to the big businesses.
“It’s just bad for the economy to have a few corporations dominating,” she said.
She wonders how many companies have shut down, how many products never went to market, how many lives have been affected because of trademark bullying.
“It’s not just little me and Nautica,” she said. “It’s a huge national problem.”