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What’s in a name? For backpack maker Osprey, it contains valuable branding power. So valuable that the Cortez, Colorado-based company has sued a California retailer to protect the brand name of one of its longtime and popular line of packs.
Osprey Packs Inc. on Monday filed a federal lawsuit claiming that Los Angeles-based Aether LLC is improperly using the name “Aether” on some of its backpacks despite a January 2019 “trademark coexistence agreement” in which Aether agreed that it wouldn’t produce any “backpacks using the Aether mark as of the date of this agreement.”
In its complaint and jury demand, filed in the U.S. District Court for Colorado, Osprey said it has been using the “Aether” mark “on or in connection with its backpacks since at least as early as March 1997—approximately a decade before Aether registered as an LLC in California.”
“Osprey has invested a substantial amount of time, money, and effort to promote and advertise its backpacks under the Aether mark, and, as a result, Osprey has built substantial goodwill and consumer recognition in its Aether brand,” the company wrote in its complaint. “Over the last 24 years, consumers have come to recognize the Aether mark as designating the source of backpacks as originating with Osprey. The Aether mark is inherently distinct, has acquired distinctiveness and secondary meaning as result of Osprey’s longstanding use, and is a source identifier for Osprey.”
Osprey owns a trademark on “Aether” for “backpacks (and) backpacks compatible with personal hydration systems, sold empty.” Aether, meanwhile, has a trademark on “Aether” for a variety of apparel items, including ski jackets, parkas, jackets, sweatshirts, T-shirts, polo shirts, rain jackets, and other goods.
Therefore, Osprey claims the retailer’s “use of the Aether mark in association with backpacks constitutes (1) a breach of the parties’ Trademark Coexistence Agreement, (2) trademark infringement … and (3) unfair competition and deceptive trade practices.”
Osprey said it has “alerted Aether to its breach of the Trademark Coexistence Agreement and its infringement, but Aether refuses to stop using the Aether mark on its backpacks. As a result, Aether’s infringement is deliberate and willful.”
The backpack brand said it is seeking “damages, Aether’s profits earned on the infringing backpacks, the costs of this action, and attorney’s fees.”
Osprey on Wednesday issued the following statement to Outside Business Journal: “Osprey contacted Aether Apparel in November 2020, when it learned that the company was still selling backpacks under the Aether brand after the sell-off period expired and in violation of the coexistence agreement. Despite Osprey’s good faith efforts to resolve the matter amicably, the companies were unable to reach an agreement. In order to protect Osprey’s valuable trademark rights in its Aether name and uphold the coexistence agreement, Osprey decided to file a federal lawsuit against Aether Apparel.”
In addition to New York City, San Francisco, and Los Angeles, Aether operates a store in Aspen, Colorado, giving the Colorado court jurisdiction over Aether’s actions, Osprey said in its complaint.