Tiger’s Golf Problem? Maybe He’s Worried about the Master’s Trademark

Use of Golf Course Landmarks Challenged in Court

Tiger Woods struggled at the PGA Championship. At this time, it looks like he'll miss the cut, which is a rough day in golf terms. But maybe his misfortune is more understandable in IP terms. Maybe he's concerned about one of the most hallowed golf courses in America. Maybe he's distracted by Augusta National's recent trademark lawsuit.

Augusta National, which operates the Augusta National Golf Club and which hosts The Masters Tournament, recently filed a trademark lawsuit against three British companies. In its complaint, Augusta National accuses the companies' simulation websites of infringing Augusta National's proprietary trademark and trade dress rights.These rights include:

Augusta National's Trade Dress:

1. "Amen Corner, comprised of the 11th, 12th and 13th holes of Augusta National's golf course;
2. The Hogan Bridge - a footbridge with three arches that takes golfers from the 12th fairway to the 12th green; and
3. The Clubhouse and the "Crow's Nest," which sits atop the Clubhouse.

The MASTERS family of marks:

1. The MASTERS mark; and
2. The Map & Flag Design mark (a red golf flag and yellow map of the U.S.)

Golf Simulator Infringing Golf's Sacred Grounds?

According to Augusta National's complaint:

Defendants have advertised, promoted, offered for sale, and sold a golf simulator software comprised of a series of computer simulations of realworld golf courses ("CPG Golf). Among the golf courses prominently featured in CPG Golf is Augusta National's golf course.

In particular, CPG Golf features the most notable portions and features of Augusta National's golf course, and incorporates the Augusta National Trade Dress, specifically including Amen Corner, Hogan Bridge, and the Clubhouse. Moreover, CPG Golf prominently displays the MASTERS family of marks, and, in particular, the Map & Flag Design and MASTERS mark ....

View or download the entire complaint filed in Augusta National v. Custom Play, et al., 11-cv-00119 (S.D. Ga. August 5, 2011)

Golf Course Trade Dress Put in Jeopardy Before

Of relevance is a 1998 case from the Fifth Circuit, Pebble Beach Co. v. Tour 18 I Limited, 155 F.3d 526 (5th Cir. Tex. 1998) [enhanced version available to lexis.com subscribers]. In Pebble Beach, several golf courses (Pebble Beach, Pinehurst, and Sea Pines/Harbour Town) filed a service-mark/trade-dress infringement lawsuit against Tour 18. Tour 18 had created golf courses comprised of famous holes, including holes from plaintiffs' courses. Specifically, Tour 18 copied Pebble Beach Hole 14, Pinehurst No. 2 Hole 3, and Harbour Town Hole 18, including the hole's signature lighthouse.

The Pebble Beach court held that:

1. plaintiffs' golf-hole designs, as trade dress, were nonfunctional;
2. Pebble Beach and Pinehurst's golf holes were not inherently distinctive and, therefore, unprotectable; and
3. Sea Pines' golf hole was protectable because: a) the distinctive lighthouse took the hole out of the generic classification; and b) the trade dress had acquired secondary meaning.

For more information on trade dress, read:

Gilson on Trademarks Chapter 2A: Trade Dress Protection (Non-subscribers can purchase Gilson on Trademarks at the LexisNexis Bookstore).

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