A trademark dispute has erupted between a Washington farm and a haunted house company over a popular Halloween event that may prove instructive for other agritourism operations.
The Thomas Family Farm and the SeattleHaunts attractions company have both filed lawsuits seeking damages and to stop the other from using the “Nightmare on 9” trademark, which refers to the Washington State Route 9 along which the farm is located.
Both complaints acknowledge the farm and the operator were involved with the first annual “Nightmare on 9” haunted house in Snohomish County in 2012 and that they parted ways after the 2018 Halloween season.
However, the two disagree about who devised the trademark concept and about their initial roles in operating the event.
The lawsuit filed in state court by Thomas Family Farm claims the idea originated with the farm, which also paid a commercial designer for the logo, while SeattleHaunts provided the labor in 2012 and was afterwards hired as a contractor to run the operation.
The farm also alleges it registered the trademark with the Washington Secretary of State last year.
SeattleHaunts, meanwhile, claims in federal court that it was an equal partner with the farm during the 2012 event and provided contract services afterwards, with its owner creating the “Nightmare on 9” name and hiring the designer.
The haunted house company claims the farm’s trademark registration was “fraudulent” and filed “under a false claim of ownership,” while SeattleHaunts obtained a valid copyright for “Nightmare on 9” from the federal government in 2019.
Without commenting on the specifics of the dispute, adjunct trademark law professor Robert Cumbow of Seattle University said it’s critical for parties involved in such ventures to establish a trademark rights agreement as early as possible.
While negotiating such matters may be awkward when everyone is getting along, it can create a “messy situation” when such relationships fracture, said Cumbow, who is also an intellectual property attorney with the Miller Nash Graham & Dunn law firm.
“At that point, you’re both going to wish you put something in writing,” he said.
Under the law, the owner of the trademark isn’t the person who came up with the concept but rather who initially relied on it to offer goods or services to the public, Cumbow said. “It’s not who thought of it, it’s the first person to actually use the trademark.”
When an entity or partnership that owns a trademark breaks up without a contractual agreement about ownership, “it does become very, very difficult,” he said.
While not technically required by law, registering a trademark with the state or federal governments will also bolster an argument of ownership, he said. “Registration gives you the presumption of validity in your trademark ownership.”
Without a contract or clarity about who starting using the trademark first, a court will generally look to the relationship between parties and any other written agreements that may provide a clue as to ownership, he said.
The goal of trademark law is to prevent confusion among members of the public as to who is the actual provider of a sought-after good or service, Cumbow said.
A court may decide both parties in a dispute own a trademark and then impose limitations on its use, but there have been cases where courts held that neither party owned it anymore, he said.