Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 21, Issue 9

Into the Woods: Girl Scouts take on Boy Scouts in Trademark Dispute

By Kristyn C. Webb

Too bad there is no “merit badge” for trademark litigation.  If there was, it would seem the Scouts BSA, formerly known as the Boy Scouts of America, might earn one for successfully defending its use of “SCOUTS” and “SCOUTING” in a trademark infringement lawsuit brought by the Girl Scouts of the United States of America, more commonly referred to as simply the “Girl Scouts.”

In 2018, the Boy Scouts of America began admitting girls and young women into its ranks for the first time since it was formed over a century ago. The organization rebranded as “Scouts BSA” and launched a new recruiting campaign called “SCOUT ME IN.”  Not long thereafter, the Girl Scouts – a distinctly separate organization – filed a complaint in a federal district court alleging, among other things, that the Scouts BSA’s use of the terms “SCOUTS” and “SCOUTING” in its recruiting materials constitutes trademark infringement.

The Girl Scouts claim that use of the word “SCOUTS” by the Scouts BSA, now that they are accepting girls and young women, is likely to cause confusion among consumers who may believe that the Girl Scouts and the Scouts BSA are now a single entity.  The programs have not merged, but the Scouts BSA and Girl Scouts offer similar services: youth development and educational programs. The Scouts BSA contends that consumers are not likely to be confused because the Scouts BSA offers co-ed programs, and the Girl Scouts offers girls-only programs.

On September 15, 2021, a federal judge hearing the case issued “temporary findings” indicating he would rule in favor of the Scouts BSA because “scouting” is merely a type of activity, and the Scouts BSA’s use of “SCOUTS” and “SCOUTING” was not likely to cause consumer confusion.

Over the past few years, memberships for both organizations have steeply declined due in part to allegations of sexual misconduct, outmoded activities, competition from youth-sports programs, and the COVID-19 pandemic.  However, Scouts BSA has admitted over 140,000 girls and young women since its policy change on gender-based admissions became effective. Under such circumstances, it is no wonder that rivalry between the organizations would heat up over recruitment tactics.  So far, it appears that the Scouts BSA has won this round.

In the next edition of FishBits mini articles, we rev up our engines and leap into a dispute between famous stuntman, Evel Knievel, and Disney’s Toy Story 4 movie.

Published October 8, 2021