Court axes demand by owner of Lizzie Borden's house that coffee shop next door stop calling itself Miss Lizzie's immediately

A federal appeals court yesterday took several whacks - possibly as many as 41 - at the company that runs a B&B in Lizzie Borden's old home in Fall River, denying its request for a temporary restraining order to get the upstart Miss Lizzie's Coffee next door from glomming onto the gruesome story as its trademark case against the coffee place continues to percolate through the courts.

Sure, the B&B, which also offers tours, and the coffee shop both have an axe in their logos. But as the US Court of Appeals for the First Circuit in Boston noted, the house's logo shows a simple notched blade, while Miss Lizzie's logo axe has a handle and bright red blood spurting from the top.

The court acknowledged US Ghost Adventures, which owns the house, had proffered some evidence of confusion in the marketplace:

One tour guide explained that guests were frustrated to learn that they could not bring Miss Lizzie's coffee on their tours of the Lizzie Borden House, having bought the coffee under the erroneous impression that the coffee shop was affiliated with the historical site. Another visitor separately attested to his belief that the businesses were affiliated. And Ghost Adventures' director of operations recounted that a Fall River city official had telephoned the company to discuss its "new business in the building next door named Miss Lizzie's."

But in general, the court continued, US Ghost would just have to suck up its wounds because the confusion wasn't widespread, and the coffee shop had put up a sign advising patrons it was unaffiliated with any other Lizzie Borden-related establishments. Also, the coffee shop was clearly paying homage to the basic story of the woman who may or may not have had an axe, which she used to give her mother 40 whacks, which is not trademarkable, rather than to the house's specific "Lizzie Borden" trademark. And the confusion might come not because of the similarity of the names, but because of the general association of Lizzie Borden with that part of Fall River.

Also, the appellate judges continued, they agreed with a US District Court judge who ruled that while both establishments were in the broad category of "hospitality," they were not in direct competition:

Ghost Adventures attracts sophisticated tourists who purchase tickets in advance and travel to Fall River to visit the historical site of the Lizzie Borden House, whereas Miss Lizzie's attracts passersby hoping for a caffeine kick or a bite to eat.

The court also rejected Ghost Adventures' claims that its house had become so associated with the legend of Lizzie Borden that it now, effectively, owned the rights to its name in the "hospitality" sector. Nope, the court said: The story of Lizzie Borden remains very much a public story and that simply because the company has used its trademark for a long time and has a "long history of investing" in promoting its brand does not mean the public now associates the story of Lizzie Borden with the house of Lizzie Borden specifically.