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The Wounded Warrior Project's (WWP) $1.7 million judgment
against a similar charity, the Wounded Warriors Family Support, Inc. (WWFS),
was recently affirmed by the Eighth Circuit. WWP had alleged that WWFS sowed
confusion on the Internet by using a website to solicit donations intended for
WWP, in violation of the Nebraska Consumer Protection Act (NCPA), Neb. Rev. Stat. § 59-1602 et seq.
Both WWP and WWFS operated charities to help wounded soldiers,
and in doing so, WWP operated two websites,
woundedwarrior.org and woundedwarriorproject.org, while WWFS operated the
website woundedwarriors.org. The websites
were very similar, with WWFS changing its website's color scheme and font and
the text phraseology to mimic WWP's website. The WWFS site displayed a
disclaimer at the bottom, but it was written in a difficult-to-read typeface
with cream on white coloring.
In WWP, Inc. v.
Wounded Warriors, Inc., 566 F. Supp. 2d 970 (D. Neb. 2008) [enhanced version available to lexis.com subscribers],
the district court proffered that WWP did not have a valid common law trademark. Addressing the likelihood of WWP's success on the merits, the
district court categorized the WWP mark as "descriptive," stating that:
the Court has found "wounded warrior project" descriptive, any
trademark thereon depends for its validity on whether the term has acquired a
. . . .
Here, WWP has failed to establish
secondary meaning. Although it has spent considerable sums on advertising and
marketing, there is insufficient evidence in the record to suggest that this
spending has created secondary meaning. There has been no evidence of an
exclusive association in the minds of consumers between "wounded
warrior" and WWP. Moreover, the defendant has identified several other organizations,
media articles, and internet sites unaffiliated with WWP that use the term
"wounded warrior." Based on the evidence presented, the Court finds
that while the public may recognize the terms "wounded warrior," or
"wounded warrior project," it does not presently associate those
terms with a single source. Therefore it cannot be said that the term has
acquired secondary meaning. Because the Court has found that the term is
descriptive and lacks secondary meaning, it also finds that any claim to the exclusive
right to use the term "wounded warrior project" is invalid.
(citations and footnotes omitted)
However, a jury awarded WWP $ 425,000 on its NCPA claim (for
loss to WWP's reputation and goodwill) and $ 1,267,719 on a claim for unjust
enrichment (for misdirected donations). In WWP,
Inc. v. Wounded Warriors Family Support, Inc., 2011 U.S. App. LEXIS 579
(8th Cir. Neb. Jan. 12, 2011) [enhanced version / unenhanced version available from lexisONE Free Case Law],
the Eighth Circuit affirmed. The Eighth Circuit found that:
With respect to the crux of
WWFS's argument, i.e., that there is insufficient evidence WWFS knowingly kept
donations intended for WWP, a reasonable jury could credit the expert testimony
of Kirchner, a forensic accountant, that WWFS possessed misdirected funds. A reasonable jury could also find WWFS's conduct in changing
the name and appearance of its website, as well as placing an anemic disclaimer
at the bottom, was designed to engender confusion among donors and amounted to
a deceptive and unfair trade practice. . . . A reasonable juror might
find the fact WWFS cashed checks that clearly referenced WWP's fundraising
events as damning evidence against WWFS. Even if WWFS did not know WWP had
sponsored the event, WWFS certainly knew WWFS had not done so.
. . . Libby Baker, Regent of the
Enoch Crosby Chapter of the Daughters of the American Revolution (DAR),
testified her organization decided to donate $198 to WWP after learning about
WWP's backpack program from one of WWP's executives. Intending to do so, Baker
"googled" the phrase "Wounded Warriors," happened upon
WWFS's website, and mailed a check to an Omaha, Nebraska, address listed
thereon. Baker thought she had donated to WWP, but in reality the DAR sent a
check to WWFS. WWFS cashed the check, and months passed without the DAR ever
receiving a letter of confirmation or acknowledgment regarding its donation.
Members of the DAR thought the lack of courtesy was "odd" and
"decided . . . [the DAR] certainly wouldn't donate again" to WWP.