July 20, 2015

Funtown Hit with a Big Splash of Trademark Confusion

As you probably know by now, I grew up in a small town in Maine. Every summer my grandparents would take my cousins and me to our favorite amusement park in Saco, Maine, Funtown Splashtown U.S.A.

New Funtown

I fondly remember spinning on those teacups and being terrified of the roller coaster. I had a flashback to childhood when scrolling through my Facebook news feed this morning and seeing good old Funtown Splashtown U.S.A. trending in the right column of my news feed. I of course had to click on the story and see what was going on with my favorite amusement park. I nearly fell out of my chair when I saw that Funtown Splashtown U.S.A. was the subject of trademark confusion.

Funtown Splashtown U.S.A. suffered trademark confusion when it received a splash of angry phone calls, emails, tweets and Facebook posts about a bullying incident at a water park in Texas with a similar name. Funtown Splashtown U.S.A.'s park spokesman soon discovered a news report from a Texas television station about an alleged incident in which an autistic boy was heckled by two teenage employees of Splashtown in San Antonio, Texas.

Splashtown San Antonio

This terrible incident was even discussed on "Ellen," prompting Funtown Splashtown U.S.A. to receive more Facebook posts and tweets regarding the incident. After a roller coaster of a weekend for Funtown Splashtown U.S.A., it took to social media to dispel the consumer confusion:

New Facebook Funtown Post

How could this have been avoided? The answer is quite simple. Before adopting a trademark, one should always conduct a search to see what other marks are out there for use on similar goods and services. Funtown Splashtown U.S.A. has been in existence since at least as early as 1969. (In case you were wondering, I called my mother to ask how long it had been around, and she remembers it being open when she graduated from high school. How's that for fact-checking?) There are two types of searches available: a knockout search, which is preliminary in nature in that they only review marks that are the subject of a federal registration or pending application or marks available in an online state trademark registration database, or a comprehensive "full" search, which includes identical trademarks, variant spellings, phonetic equivalents, and other similar marks from the United States Patent & Trademark Office records, State records, as well as Common Law, Web Common Law, and Domain Name sources.

The other ways to avoid trademark confusion are to maintain trademark registrations and police trademarks. Ironically, Funtown is the owner of an abandoned trademark application and an abandoned trademark registration. The registration was cancelled as a result of Funtown's failure to file a statement of use. A federal trademark registration and maintenance of that registration puts third parties on notice of one's rights in a trademark. Once a trademark owner obtains a registration, it also has a duty to police its mark.

This little incident of mistaken identity and social media backlash could have been avoided through trademark searching and policing of marks. I would have loved to conclude with some throwback photos of me at Funtown Splashtown U.S.A., but my mother unfortunately couldn't find any. She's still searching, so stay tuned...

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