BLINDED VET. ASS'N v. BLINDED AM. VET. FOUNDATION

• Decision Date: 08 March 1988
• Docket Number: Civ. A. No. 86-1563.
• Citation: 680 F. Supp. 442
• Parties: BLINDED VETERANS ASSOCIATION, Plaintiff, v. BLINDED AMERICAN VETERANS FOUNDATION, Defendant.
• Court: U.S. District Court — District of Columbia

680 F. Supp. 442

BLINDED VETERANS ASSOCIATION, Plaintiff, v. BLINDED AMERICAN VETERANS FOUNDATION, Defendant.

Civ. A. No. 86-1563.

United States District Court, District of Columbia.

March 8, 1988.

Irving R.M. Panzer, Washington, D.C., for plaintiff.

Steven E. Lipman, Washington, D.C., for defendant.

DECISION AND ORDER

JACKSON, District Judge.

Plaintiff Blinded Veterans Association ("BVA") is a non-profit corporation chartered by an act of Congress in 1958. It is a reincarnation of a New York corporation of the same name dating from 1947, which was itself formed from an unincorporated association founded two years earlier to give aid and comfort to former U.S. service personnel originally sighted, then blinded as adults (although not necessarily as a consequence of military service). Defendant Blinded American Veterans Foundation ("BAVF") is a District of Columbia nonprofit corporation formed in September, 1985, by three individuals, all former officials of BVA, with the purpose of assisting veterans with "sensory disabilities such as visual impairment, hearing impairment, speech impediments, etc." Both organizations look to the charitable public for financial support.

The BVA sues the BAVF for trademark infringement under 15 U.S.C. § 1125 and 28 U.S.C. § 1338(a) to enjoin its use of its current name, the initials "BAV," and the use of the words "blinded" and "veterans" in conjunction with one another in such name as it may hereafter choose as an alternative, claiming they are confusingly similar to its own. Upon the following facts, as found by the Court in accordance with Fed.R.Civ.P. 52(a) upon trial without a jury, the Court concludes, for the reasons set forth, that judgment must be given for plaintiff and an injunction issued as prayed.

I.

BVA originated with a group of blinded U.S. World War II veterans convalescing at a U.S. Army hospital in Avon, Connecticut, in March of 1945. It held its first "convention" in New York City in 1946, incorporated and opened an office there in 1947 with a private grant of money, and has since supported itself in part with modest dues income, and contracts with the U.S. Department of Labor and Veterans' Administration to assist blinded veterans with rehabilitation and employment. It is, however, primarily dependent upon contributions made in response to direct mail solicitations which account at the moment for nearly 70 percent of its income. It presently has a membership of approximately 6,500, employs 16 staff members in its Washington, D.C., headquarters and eight "field representatives," and operates on an annual budget of slightly less than $1.5 million. It is audited annually, and the report is sent to the U.S. Comptroller General.

Since its formation BVA has regularly published a newsletter known as the "BVA Bulletin," containing information of interest to sightless former servicepeople, which it mails to as many of them as the Veterans' Administration makes known to it (about 20,000 at present), whether or not they are members of BVA. Administratively it divides its membership into 42 chapters, called "regional groups," clustered into six "districts." At its annual national convention the delegates elect "directors" from each district who constitute the BVA's National Board of Directors.

In addition to its direct services to blinded veterans across the country, which range from arranging for rehabilitative services and job training and placement to advising on claims for government benefits, BVA engages in activities typical of such special interest groups. It testifies before Congress, joins in litigation likely to benefit its constituency, and sponsors events intended to elevate the plight of blinded military personnel in the public consciousness. BVA makes public appeals for funds by mailing more than four million solicitations per year, most of them "prospect" mailings going to strangers, with the remainder being sent to names on a "house" list of former contributors from which BVA experiences an annual attrition of 20-30 percent.

Other than an unspecified number of "volunteers," BAVF, BVA's nascent competitor, has no "members" as such, only its three officers-directors-incorporators (who hold full time jobs elsewhere), all of whom at one time held responsible positions with BVA during the mid-1970's to as late as 1982. All three are themselves blinded veterans.

BAVF first made its presence known to BVA at the time of the 1986 Combined Federal Campaign ("CFC"). Organized too late in the year to be officially recognized as a CFC beneficiary in 1985, BAVF applied in 1986 to 522 local CFC campaign organizations who listed it, along with (and alphabetically above) BVA, as a prospective recipient of Campaign funds. In 1986, its president estimated, BAVF took in some $35,000-$40,000, half of which came from CFC pledges, the balance from "corporate" contributions. It has no overhead; its "office" is free "desk space" in a local consulting firm's office, and it has no staff. At the time of trial it had a balance of about $10,000 in a bank, the name of which the president could not then remember.

BAVF has held Flag Day celebrations. It presented and publicized awards to members of Congress and journalists who had shown an interest in handicapped veterans. It commissioned a recording of a reading of the U.S. Constitution (at a cost of $.56 each) which it mailed (postage free) to 17,500 blinded veterans across the country. And it found employment for three such veterans, and presented a gift of some "trial lenses" to the Veterans' Administration. Its future plans include the development of a better "folding cane," and an "outreach" program to veterans who are blind in one eye and afflicted with diabetes. It aspires someday to build a rehabilitation center.

Although its charter declares its purpose to be to assist veterans with any "sensory disabilities," BAVF's efforts, so far, have been directed exclusively towards those who are blind. Its president insists that it "never occurred" to its founders that BAVF's name was similar to the plaintiff's. They selected it, he says, because he and his colleagues are what they are, viz., "blinded American veterans." Nor was there any intention, he says, to compete with BVA; they had hoped that BAVF and BVA could "work together" on behalf of blinded veterans.

The Court finds otherwise. It finds that BAVF was deliberately named, and presently refuses to change its name, to enable it to capitalize upon the association in the mind of the charitable public between the words "blinded" and "veterans" (and the understandable sympathy they engender), and, thus, to compete with plaintiff for the funds of those inclined to give to such a cause.¹

II.

Defendant contends that the term "blinded veterans" is a "generic" term — a class of persons, nothing more — and, thus, incapable of acquiring trademark significance. See 1 McCarthy, Trademarks and Unfair Competition, § 12.1 (2d Ed.1984); Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976). Were the words used separately, e.g., "the blinded persons association" or "the veterans association," the characterization might be apt, but, in conjunction with one another, the Court concludes, they are, at the least, a "descriptive" term in trademark parlance, which is entitled to protection against infringement if it has, over time, acquired in the mind of the...