Blinded Veterans Association v. Blinded American Veterans Foundation
872 F.2d 1035 (1989)
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Rule of Law:
A generic term, which denotes a class of things rather than a specific source, cannot receive trademark protection, even if it has acquired a 'secondary meaning' in the public's mind. However, a senior user of a generic name may be entitled to protection against a junior user's 'passing off' if the junior user fails to adequately distinguish itself, causing a likelihood of public confusion as to the source.
Facts:
- The Blinded Veterans Association (BVA) was founded in 1945 to provide services for veterans who have lost their sight and has used its name and the initials 'BVA' since its inception.
- In 1985, three former officials of BVA founded a new nonprofit organization named the Blinded American Veterans Foundation (BAVF).
- BAVF's charter broadly defines its purpose to assist veterans with various sensory disabilities, but its efforts have been directed exclusively toward sightless former servicemembers.
- BAVF's original logo used the initials 'BAV' in large type, which bore a marked resemblance to BVA's 'BVA' logo.
- In 1986, BAVF successfully applied to be listed in the Combined Federal Campaign (CFC), where it was listed alphabetically ahead of BVA, and received between $35,000 and $40,000 in its first year.
Procedural Posture:
- Blinded Veterans Association (BVA) filed suit against Blinded American Veterans Foundation (BAVF) in the U.S. District Court for the District of Columbia.
- BVA sought an injunction under the Lanham Act to prohibit BAVF from using the words 'Blinded' and 'Veterans' in its name.
- The district court ruled that 'blinded veterans' was a descriptive term that had acquired secondary meaning and that BAVF's name was likely to cause confusion.
- The district court granted a permanent injunction against BAVF, prohibiting it from using the name 'Blinded American Veterans Foundation' or similar combinations.
- BAVF, as the appellant, appealed the district court's decision to the U.S. Court of Appeals for the D.C. Circuit; BVA is the appellee.
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Issue:
Does the term 'blinded veterans' constitute a generic term that is ineligible for trademark protection under the Lanham Act?
Opinions:
Majority - Judge Ruth Bader Ginsburg
Yes, the term 'blinded veterans' is a generic term that is ineligible for trademark protection. A generic term is one that is commonly used to denote a type of entity or product, indicating the thing itself rather than its source. Because 'blinded veterans' is the common, concise, and clear term used by the public to refer to former members of the armed forces who have lost their vision, it cannot be exclusively appropriated by one organization. The court reasoned that since the term is generic, it is not protectable as a trademark, regardless of whether it has acquired a secondary meaning. However, the court also found that BVA may still have a viable claim for 'passing off' if it can prove that BAVF's actions create a likelihood that the public will be confused into thinking BAVF is BVA. This protection against unfair competition exists even for generic terms if a competitor fails to adequately distinguish itself from the senior user.
Analysis:
This decision clarifies the critical distinction between generic terms, which are unprotectable as trademarks, and descriptive terms, which can be protected upon a showing of secondary meaning. It establishes that even when a term is deemed generic and enters the public domain, the common law doctrine of 'passing off' can provide a remedy if a newcomer causes public confusion by failing to distinguish itself from an established entity. This prevents competitors from unfairly capitalizing on the specific goodwill of a senior user, even when that user's name is comprised of generic words. The ruling balances the public's right to use generic language with the need to prevent consumer deception about the source of goods or services.
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