-Wes Anderson, Attorney
During today’s first round of the Open Championship at Royal Birkdale, many a golf ball bearing the famous TITLEIST cursive script will be lofted into the heavens – meanwhile, back on the ground, the brand’s owner is attempting to stamp out a lewd parody of its trademark.
An online golf apparel company, I Made Bogey, has been sued by Acushnet Company (the owner of the TITLEIST brand) for its sale of a line of lewd apparel and headwear that clearly appropriates the Titleist cursive script to – well, I’ll just let you see the images (and the products remain for sale online):
The Titleist logo has become an icon in the golf world, despite its humble beginnings:
It all starts back in 1935 when Phil Young and Fred Bommer, the founders of the Acushnet Company, were ready to launch the first Titleist golf balls into the market.
Having spent the better part of three years designing, developing and perfecting the ball, the team now needed to add the finishing touch – the logo.
Knowing that their office secretary Helen Robinson had beautiful penmanship, Young and Bommer asked her to write the word ‘Titleist’ on a piece of paper. And as the saying goes, the rest is history.
The way Helen penned the word on the page that day was used for the original branding and the Titleist script, one of the world’s most recognized marks, is still based on this initial lettering today.
Reports on the lawsuit have commented that Acushnet’s prospects for clear-cut trademark infringement are not ideal. After all, classic infringement will require consumer confusion as to source, affiliation, or sponsorship between I Made Bogey and Acushnet / Titleist. And here, most golfers who “get the joke” will clearly differentiate the lewd T—–S hats from the TITLEIST hats worn by the pros.
And dilution by tarnishment will prove to be another challenge for Acushnet. It’s ostensibly an intuitive fit for this type of lawsuit, but parody is not necessarily encompassed by a tarnishment claim. Tarnishment generally requires the defendant to be using the same mark for unrelated goods or services, but for low-quality goods or otherwise in a manner that might degrade the distinctiveness of the famous trademark. Here, a different mark is being used, and if consumers can understand the difference, and lean away from any confusingly-similar association with the TITLEIST mark, then the argument would run that tarnishment is not, in fact, taking place.
Will the #1 Ball in Golf come out the victor here? Above all, trademark lawsuits are a pricey affair, particularly for a relatively small online business – but I Made Bogey’s continued sale of the allegedly infringing products seems to indicate this battle may not be resolved for quite some time.