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Girl Scouts lose bid to corner a market that’s gone gender-neutral

The Boy Scouts of America sparked a copyright complaint after opening the door for all children to join up, part of a bid to embrace inclusivity and find distance from a sex-abuse scandal.

MANHATTAN (CN) — A federal judge found no basis Thursday to let the Girl Scouts claim that the Boy Scouts caused marketplace confusion and damaged their recruitment efforts by using words like “scouts” and “scouting” in marketing materials.

Dismissing the trademark case at summary judgment, U.S. District Judge Alvin Hellerstein endorsed the rights of the Boy Scouts of America to use term “scouting” as a standalone without gender.

The Girl Scouts filed their suit in November 2018, a year after the Boy Scouts announced that its the 112-year-old youth programs would no longer be gender specific. Facing a decadeslong backslide of member numbers driven by social trends and a rise in sports league participation, the organization's change offered a new pool from it to draw.

Not eager to share that pool, however, the Girl Scouts brought counts of trademark infringement, trademark dilution and unfair competition.

Judge Hellerstein ended the litigation Thursday, finding no evidence that the Boy Scouts acted in bad faith.

“The Boy Scouts adopted the Scout Terms to describe accurately the co-ed nature of programming, not to confuse or exploit Girl Scouts' reputation,” the Clinton-appointed judge wrote. “Such branding is consistent with the scout-formative branding Boy Scouts has used for a century, including in its co-ed programs that have existed since the 1970s."

“Scout” is descriptive both in reference to the Boy Scouts' and Girl Scouts' programming, the judge continued.

"The Boy Scouts' decision to become co-ed, even if it affects Girl Scouts' operations, does not demonstrate bad faith," the 29-page opinion states.

A Boy Scouts of America spokesperson said on Thursday that the organization was pleased that the court "has vindicated the BSA’s position and summarily rejected all claims of the Girls Scouts of the USA."

"The BSA believes that there are many excellent options for parents and young people to develop character and leadership, including both the BSA and GSUSA," the Boy Scouts said in a statement. "We support the right of families and girls to make their own choice of youth development organizations that work best for them."

Representatives for the Girl Scouts did not immediately respond to requests for comment on Thursday.

Hellerstein's ruling in the Girl Scouts’ case, which the judge noted was “serious, contentious and expensive,” comes while the Boy Scouts are in bankruptcy proceedings in Delaware that began in February 2020.

The Irving, Texas-based Boy Scouts sought bankruptcy protection after it was named in hundreds of lawsuits brought by individuals claiming they were molested by scout leaders as minors.

Last July, the Boy Scouts of America reached a landmark $850 million settlement in bankruptcy court with more than 84,000 former scouts dating back to the 1960s who say they were sexually abused.

In response to the mounting lawsuits, Boy Scouts has mortgaged several of its properties owned by the national organization to secure lines of credit, including the 140,000-acre Philmont Ranch in New Mexico and its national headquarters in the suburbs of Dallas.

The national organization has needed the financing as several of its insurers have refused to defend or indemnify Boy Scouts against the sex-abuse claims.

In a 2018 press release, the Boy Scouts of America said that the inclusive “Scout Me In” campaign shifted the marketing perspective to show the Scouts’ experience from a child’s point of view, “instead of simply showing Scouts participating in activities, the campaign brings the young viewer into the middle of the action — from fishing, biking and canoeing to launching rockets and making slime — where they get even closer to the experiences that Scouting brings to life.”

The “Scout Me In” recruiting campaign was developed by Dallas-based advertising agency Johnson & Sekin, which described the tagline as “an energetic, youthful phrase that, at the heart, is about inclusiveness.”

In his decision, Judge Hellerstein wrote that he ruled in favor of the Boy Scouts in part because the Girls Scouts had not sufficiently shown that a likelihood of confusion was caused by the Boy Scouts' use of the term “scout."

He said the Girl Scouts had cited instances of parents confusing the two organizations. Nevertheless, he continued, the choice to join one organization or the other is made after several interactions with the organization, by children's desires to join a group siblings or friends have joined, or other factors unrelated to trademarks and branding.

The pattern of diminishing membership in both scouting organizations was further aggravated by the Covid-19 pandemic.

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