Union busting is old as unionization itself. From illegal actions like terminating union organizers to sometimes-permissible sometimes-impermissible tactics like captive audience meetings, employers consistently attempt to deter and defeat union drives. 

Recently, an older tactic has reemerged: trademark infringement lawsuits. Noteworthy employers like Medieval Times, Starbucks, and Trader Joe’s have all brought lawsuits against their respective unions for trademark infringement in the past few years. While the former two suits were dismissed, Trader Joe’s lawsuit was just revived by the Ninth Circuit, as detailed in a previous post.

Even when trademark infringement claims are dismissed, however, these lawsuits can have negative impacts on union drives. This post offers background on trademark infringement claims in the labor context and examines one such lawsuit that ultimately contributed to the end of an organizing campaign. 

Trademark Lawsuits 

Trademark infringement lawsuits, and lawsuits over very similar claims, are hardly new. In fact, both unions and employers have brought these kinds of claims in the past. 

Unions started bringing trademark infringement-like suits against employers in the early 1900s. The subject of this litigation was union labels, logos that indicate a product was made with union labor. After successfully lobbying states to pass laws protecting their labels in the early 1900s, described by some as “quasi-trademark protection[s],” unions began to bring lawsuits against employers for improperly placing union labels on non-union-made products. For instance, in 1940, the International Allied Printing Trades Council successfully sued a non-union print shop for printing materials with its label. These lawsuits were aimed at stopping businesses from actively misrepresenting products as union-made when they were not. 

On the other side, federal trademark suits by employers against unions began after passage of the Lanham Act. As early as 1970, an employer brought a trademark infringement claim against a union that was attempting to organize its manufacturing plant. The union had already petitioned for an election with the National Labor Relations Board, and there were ongoing proceedings about the bargaining unit, eligible employees, and the election to be held. In the midst of the organizing campaign, the manufacturer brought a trademark infringement suit, seeking an injunction against the union to stop it from using the employer’s name on handbills it distributed to employees. The court ultimately dismissed the employer’s claim. This early dismissal became the norm: Many of the trademark claims brought against unions end up being dismissed. 

Trademark infringement is a multi-factor analysis, but the crux of the question is whether consumers are likely to be confused about the source of a product due to the similarity between two logos. Infringement only occurs when a confusingly similar trademark is used in connection with the sale of a good or service. As such, trademark doctrine recognizes fair use defenses, which permit one to use another’s trademark to describe a product or to identify the trademark owner. 

Unions often use trademarks to identify an employer during organizing or use a logo in a manner which cannot plausibly lead to consumer confusion. In these contexts, trademark infringement claims against unions are frequently baseless and unions can successfully argue for dismissal. For instance, using an employer’s name in connection with an organizing campaign is permissible, as is the use of the trademark to identify the employer which the union is attempting to unionize. On the other hand, trademark claims against unions have more merit when the union uses, on products it offers for sale, a logo that is similar to the employer’s. When Trader Joe’s United used an image similar to Trader Joe’s trademark on union merchandise sold online, the employer’s trademark infringement claim against the union avoided dismissal. 

Despite unions’ frequent success in defending against trademark infringement claims, there has been a resurgence of these lawsuits in recent years. Even when the lawsuits are dismissed, they can still negatively impact unions, as is clear from the story of Medieval Times. 

Medieval Times

Workers at the Medieval Times, a dinner theater company, perform an 11^th century joust while guests dine. They fight with swords, ride horses, and fly falcons, all while a cheering, rowdy crowd watches. The performers have raised safety concerns in the past ranging from too little security to animal care worries. 

After the American Guild of Variety Artists began unionization efforts at two Medieval Times locations, Medieval Times engaged in an aggressive anti-union campaign with what one union supporter described as an intention to destroy the union. One tactic (among many) Medieval Times used was a trademark infringement lawsuit against the union. In 2022, Medieval Times alleged the performers’ union infringed the employer’s trademark by using similar colors, themes, imagery, and “Medieval Times” in the union’s own logo, which it used on merchandise for sale and social media.

The district court dismissed the lawsuit in 2023, finding that the union’s logo was not “confusingly similar” to the Medieval Times logo as required for a trademark infringement claim. Then, earlier this year, an administrative law judge (ALJ) at the National Labor Relations Board found that the trademark infringement lawsuit was a retaliatory action against the union for its success in organizing two locations. 

The ALJ found the trademark lawsuit was an unfair labor practice: It lacked a reasonable basis and was filed with retaliatory motive. The ALJ explained Medieval Times could not have reasonably believed it would be able to prove its trademark infringement claims given that the logos at issue were “unmistakably visually distinct.” Additionally, the ALJ found that Medieval Times filed the lawsuit to retaliate against the union. The timing of the lawsuit, that Medieval Times sought to enjoin online activity in which the union’s logo appeared despite that activity being clearly protected by law, and the other unfair labor practices that Medieval Times engaged in all factored into the ALJ’s analysis. As a result, the ALJ ordered Medieval Times to reimburse the union for its legal fees and other expenses related to the lawsuit.

Unfortunately, this result is not much of a remedy. The lawsuit pulled the union into a legal battle for 11 months before the employer’s complaint was dismissed; the union had to divert time and money to defend itself in court. Indeed, the purpose of these meritless trademark suits is to delay bargaining, an effective move in an industry with high turnover, and to deplete a union’s resources. In March of 2024, the American Guild of Variety Artists abandoned its organizing campaign, explaining that workers had become impatient during the lengthy campaign, and that the union lacked sufficient resources. Though the ALJ ruled against Medieval Times, in the end the employer still achieved its illegal, union-busting goal. 

Trademark infringement claims against unions are not new, but they are having a revival. Not all of these lawsuits are meritless, especially where a union is selling a product with a logo that is too similar to the employer’s. Nonetheless, many of these claims are baseless. Courts must be vigilant in discerning between the two to avoid aiding an employer’s illegal union-busting effort.