from the oops dept
We’ve seen a great many examples of trademark lawsuits here at Techdirt. In most cases, those lawsuits are levied by individuals and companies that are the trademark bully, but that’s not always the case. We also see plenty of suits that are raised in defense of such bullying, in which the entity suing asks the court to simply affirm that its use is not infringing. Trademark bullies, of course, don’t like when that sort of thing happens.
Meet Scott D’Avanzo of California. Scott did a pretty cool thing and created a haunted house attraction in his garage, naming it the “Mystic Motel.” Then he came across the plans of the Silver Dollar City theme park near Branson for its new “Mystic River Falls” water rafting ride. At that point, he did the very un-cool thing of contacting Mystic River over the trademark he had on his haunted house and demanding to speak about the name of the new ride.
Scott D’Avanzo said he sent Silver Dollar City a letter earlier this year asking the theme park to contact him about the name, which he claims is similar to the “Mystic Motel” name he used for a haunted house attraction he started out of his garage.
“You have to police your trademarks,” D’Avanzo said. “That’s all we were doing is protecting what was ours.”
D’Avanzo said he has sent many letters to other businesses that are similar to the one he sent Silver Dollar City. He said his letters are usually followed by a phone call where the two parties can work out some parameters for use of the name.
Silver Dollar City, however, didn’t bend the knee to D’Avanzo. Instead, the theme park filed a lawsuit, seeking to have the court declare that the name of its ride at a large-ish theme park doesn’t somehow violate the trademark rights for a garage-based haunted house. The reported arguments Silver Dollar City makes are the ones you would expect; namely, that its use of the word “Mystic” isn’t going to cause confusion among the public for a “family project and neighborhood attraction.” That’s all the theme park wants: the reasonable use of the name of its ride.
But Silver Dollar City doesn’t stop there. The theme park also points out that D’Avanzo didn’t oppose its trademark application, didn’t say a word about it until it came time for a money-grab, and, oh, D’Avanzo destroyed his Mystic Motel setup entirely some time ago.
Upon information and belief, both the “Mystic Motel” “dark house” and the Christmas-themed “Journey to Polar Point” family projects were destroyed or deconstructed at some time. Upon information and belief, the “Mystic Motel” and “Journey to Polar Point” marks were not in continuous use with those projects during certain years. Upon information and belief, the “Mystic Motel” and “Journey to Polar Point” marks were not used at all or in interstate commerce with those projects during certain years. Upon information and belief, the “MYSTIC MOTEL” mark does not appear to be in use at this time. Upon information and belief, Mr. D’Avanzo and his family are not currently living in the Ladera Ranch house and they appear to have no ability to offer the “dark house” attraction under the “MYSTIC MOTEL” mark for Halloween this year.
In fact, the filing goes so far as to claim that D’Avanzo’s trademark application itself may have been built on lies, where he claims to be using the “Mystic Motel” mark in interstate commerce, but never did. On top of that, D’Avanzo created a separate company, Adrenaline Attractions, to which he assigned the trademark. Adrenaline Attractions doesn’t provide amusement attractions, but instead consults with parks to design rides, which isn’t the market designation for which D’Avanzo has his trademark. Also, Adrenaline Attractions appears to have exactly one customer. Again, this is not a story about confusion in commerce, but about a money-grab.
This, somehow, rates with D’Avanzo as bullying.
“That’s what they are is a big bully,” D’Avanzo said of Silver Dollar City. “I’m not a stranger to the court,” D’Avanzo said. “And if I have to fight, I will.”
Any reasonable assessment of the situation would result in Silver Dollar City’s request for declaratory judgement to be granted. I’d only like to add that it takes chops to bully a company over a trademark, have that company ask the court to defend it from the bullying, and then call the company the trademark bully.
Maybe D’Avanzo can add an IP wing to his haunted house, except he doesn’t appear to actually have one any longer.