Boys Versus Girls, Trademark Edition
The Boy Scouts and the Girl Scouts are having an IP kerfuffle over the word 'Scouts.'
The Boy Scouts of America have made headlines over the last decade or two, from reports of thousands of reported cases of sexual abuse to controversies over membership (primarily around membership of LGBT individuals), leading to various lawsuits. While the organization has changed its stance and become more inclusive in its membership, their legal troubles haven’t ended. In fact, since its decision last year to start admitting girls into the organization, they’ve been on a collision course with the Girl Scouts of the United States. The Girl Scouts sued the Boy Scouts earlier this month over the use of the word “Scouts” arguing confusion over what had previously been co-existing trademark claims.
After the Boy Scouts’ decision to admit girls, it rebranded itself as Scouts BSA, which the Girl Scouts allege creates confusion. The Boy Scouts and Girl Scouts are not affiliated groups and each has their own registered trademarks, which up until now have lived in peaceful co-existence. Because of the Boy Scouts’ decision to admit girls, however, the Girl Scouts have concerns that the generic use of the word “Scouts” or “Scouting” will cause confusion or dilute the value of the Girl Scouts trademark.
How could the Boy Scouts of America have avoided this whole mess? For one thing, instead of simply dropping the word “Boy” and leaving the rather broad — and shared — term “Scouts,” it could have replaced “Boy” with something non-gender specific. For example, the organization could have rebranded itself as “Outdoor Scouts” or “Eaglet Scouts” or some other distinction from just “Scouts.” I’m sure the Boy Scouts can come up with non-gendered way to distinguish itself from the Girl Scouts.
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While one might make the argument that “Scouts BSA” is actually different enough from “Girl Scouts” to avoid confusion, with the abbreviation for “Boy Scouts of America” appended to the word “Scouts,” the complaint reveals multiple instances where the Boy Scouts produced promotional materials referring only to “Scouts” or “Scouting.” One marketing campaign used the tagline “Scout Me In.” The use of “Scouts” or “Scouting” broadly, without the attachment of “BSA,” could certainly result in confusion over who this organization represents. The Girl Scouts are seeking an injunction, preventing the Boy Scouts’ use of the words “Scouts” or “Scouting” on their own.
To make matters even worse, not only have the Boy Scouts used the generic terms “Scouts” and “Scouting,” but the organization also seems to have directly infringed the Girl Scouts’ trademarks. According to the complaint, promotional materials by the Boy Scouts have referred to a “New BSA Girl Scouting Program” or “Girl Scouts BSA Troop” or “Boys/Girls Scouts of America” or “Boy and Girl Scouts.” The Girl Scouts have thus claimed trademark infringement. The complaint goes further, pointing to statements that local Boy Scouts troops have made that suggest that there are no more girl scouts, or that “Girl Scouts are in our pack,” or that the Boy Scouts and Girl Scouts have merged. The complaint points to several instances in different states where parents mistakenly signed up their daughters for Boy Scouts, believing they were signing them up for Girl Scouts, demonstrating that confusion has indeed occurred.
Interestingly, the current dispute over the word “scouts” isn’t the first time the Boy Scouts and Girl Scouts have clashed over the term. A story last year in The Atlantic points out that the Boy Scouts opposed the creation of the predecessors to the Girl Scouts, a group known as the Girl Guides. When the Girl Guides changed its name to the Girl Scouts in 1915, the Boy Scouts sued over the Girl Scouts’ use of the word “scouts” asserting (apparently) that this use “sissified” the word.
At the end of the day, the ultimate aim for both the Boy Scouts and Girl Scouts is to shore up membership numbers. Boy Scouts’ advertisements clearly demonstrate an effort to recruit girls into their ranks, even if they need to do so in a misleading way — such as suggesting that the groups have merged. By using the broader term “Scouts,” it will be easier for them to make such claims, either directly or indirectly. The Girl Scouts, too, have been worried about the Boy Scouts pulling potential new members away and by seeking a court ruling to prevent the Boy Scouts from using the broad term “Scouts” on its own, it will be easier to distinguish between the groups. Trademark appears to be a great area for the Girl Scouts to try and defend defections, given the utility of trademarks in protecting a brand and its purpose in preventing consumer confusion.
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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.
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