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Is Intellectual Property Being Used to Break Up Unions?

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In the wake of the pandemic, organized labor has grabbed headlines. Workers at high profile companies such as Starbucks, Amazon, and Chipotle have attempted (with varying degrees of success) to unionize over the past two years. The National Labor Relations Board, in its 2022 semi-annual report covering October 2021 through March 2022, revealed that union representation filings were up 57% over the previous year.

While intellectual property valuation typically has little to no overlap with unionization efforts, things changed this summer when Medieval Times, a company that provides food, drink, and Medieval-themed entertainment, pressed trademark infringement charges against Medieval Times Performers United (“MTPU”) and the American Guild of Variety Artists (“AGVA”). MTPU, formed in the summer of 2022, is a group of workers at the Lyndhurst, New Jersey and Buena Park, California Medieval Times locations, while AGVA is a union that represents a variety of entertainers ranging from Disney cast members to stand up comedians to cabaret dancers.

The complaint, filed in New Jersey District Court, asserts that the defendants infringed on the Medieval Times trademark by creating a mark that utilizes the words “Medieval Times” along a backdrop of Medieval imagery including a castle, shield, and crossed swords (the mark may be seen at MTPU’s website). Medieval Times claims, among other things, that MTPU’s use of the mark via social media, collection of union dues, and assumed sale of merchandise bearing the MTPU logo results in customer confusion and the implication that Medieval Times is affiliated with MTPU. On the other hand, MTPU dismisses Medieval Times’ claims as frivolous and, according to its Twitter account, is “in brazen violation of the National Labor Relations Act”.

As described in the complaint, Medieval Times is seeking “treble damages, attorneys’ fees and cost of suit, and to such other and further relief, as the Court shall deem appropriate in the circumstances.” If liability is indeed found, damages would be measured by two widely acceptable methods: unjust enrichment and lost profits.

Unjust enrichment quantifies the defending party’s profits generated by the infringing act. Typically, the plaintiff has the burden to prove revenues tied to infringement, while the defendant has the burden to prove expenses and other deductions related to earning said revenues. In this case, Medieval Times must show a portion, or all, of MTPU’s primary source of income—union dues—were generated from use of the Medieval Times trademark. Medieval Times must therefore show that workers decided to join MTPU, at least in part, because of the MTPU logo.

The second method of calculating damages is lost profits. While unjust enrichment measures the profits of the defendant, lost profits are the profits the plaintiff would have generated, but for the actions of the defendant. The burden of proof for lost profits lies with the plaintiff. In the context of these proceedings, Medieval Times must prove MTPU received profits that otherwise would have gone to it. Therefore, this damages calculation method inherently assumes Medieval Times and MTPU sell competing products and services. While it can be argued that they both have sold branded merchandise, Medieval Times does not sell union representation and MTPU does not sell food, drinks, or entertainment. Thus, any lost profits would be limited to MTPU’s alleged merchandise sales—as that is the only area of overlapping goods and services.

If it is determined that MTPU is liable for trademark infringement, the above cursory analysis of the unjust enrichment and lost profits methods indicates that damages will not be significant. CONSOR, as IP experts, has a successful track record in implementing unjust enrichment, lost profit, and other types of methodologies to accurately value intellectual property in a variety of litigation and monetization scenarios. Simply let us know how we can best serve you.