Weathering the storm of cease and desist

STORY BY VANESSA SARIEGO | PHOTS BY GRACE SCHRATER 

Christine Palmerton is a strong woman, yet one letter left her locked inside her home shedding tears of worry for an entire day. One letter that demanded she give up everything she had built over the last five years, and struck down her future dreams in one single-spaced page. Her fear came from the realization that this letter came from a much bigger fish in the sea than herself, Nautica.

Christine has made a name in the boating industry as “the NautiGirl,” and is using the fierce attitude of her company in a branding dispute with the clothing giant Nautica. Nautica is an apparel, accessories and home collection brand founded in 1983 and now owned by VF Corporation. its cease-and-desist letter was the first threat in a two-year pursuit to eat up Palmerton’s small business.

NautiGirl is a line of clothing, hats, mugs, bags and other accessories geared toward female boaters. With the coaxing tagline “Dare to be naughty,” the character is clearly defined:

“A NautiGirl is confident, adventurous, smart and compassionate. She loves the water, and cannot resist taking control at the helm. Her destination is yet to be determined, but she’ll lead the exploration. Her spirit, mixed with a little vulnerability, makes her extremely sexy.”

The logo is an illustrated slender, blue-haired woman behind the mast of a ship. With a scarf blowing behind her, she wears a sailor’s hat and raises a martini glass.

“She’s steering her own destiny, but the martini glass is symbolic of having a lot of fun along the way,” Palmerton says.

It is Christine’s history of having a feminine, can-do attitude that translates into the daring personality of the brand. In 2003, without knowing anything about boating, Palmerton quit her job and committed to a career in an industry-at-sea. Her new position as a marketing manager for a yacht charter company was much more appealing than her former job selling hazardous waste cleanup products at Cascade Sorbent, she says.

Within a year-and-a-half of starting at Par Yacht Charters LLC, she bought out the senior partner and was running the business solo.

“I wanted to see where we could take it; I didn’t want to just give up, and the senior partner wanted to,” she recalls. “I guess that adventurous spirit kicked in like, ‘No we’re just getting going, why would you want to give up now?’”

While marketing at the 2006 Seattle Boat Show, Christine left the Par Yacht Charters booth to find a fun tote bag that displayed the passion she had for boating, she says. There was nothing. No accessories for the boater enthusiast, and certainly nothing as fabulous as what Christine had set out to find.

It was then that NautiGirl was born. The brand launched at the same boat show two years later. Its immediate popularity led Palmerton to believe she had successfully filled a niche market for the female boater. Even NautiBoy, for the man at sea, NautiBaby, for the adventurous toddler, and NautiDog, for the canine boater, were requested by customers, and Christine delivered.

When NautiGirl began generating more revenue than Par Yacht Charters, she sold her original company in 2011 to focus solely on expanding NautiGirl.

Then, in January 2013, she received the cease-and-desist letter from Nautica; a letter that has since severely threatened the livelihood of her company. Nautica demanded Palmerton to stop using the NautiGirl name and logo, and forfeit all products with such branding under the assumption they would cause consumer confusion.

“I met with my attorney after I got the letter and he’s like, ‘You’re legally right, but they have more money than you, so what’s your budget?’” Palmerton remembers. She didn’t have the money, but she was convinced Nautica’s aggressiveness wasn’t right.

Other experts think differently. “As I say frequently, all trademark defendants think they are being bullied. I don’t think this case fits the definition,” Professor Kenneth Port of the William Mitchell College of Law says in an email. “As Nautica has priority, and is famous, they would prevail under either an infringement theory or a dilution theory.”

Under the Lanham Act, also known as the Trademark Act, the dilution theory is different from normal trademark infringement, in that there is no need to prove there would be confusion in order to protect a famous mark. All the famous brand needs to prove is that the distinctive quality of the brand is “diluted” in some way.

On its website, Nautica claims to be one of the most important and recognized American brands, with 265 of their own stores, and products available in over 3,000 other locations around the world.

Intellectual property attorneys from the Baker & Rannells law practice, who represent Nautica, did not respond to an email requesting comment on the case.

Although Palmerton was granted the trademark for NautiGirl in October 2009, big companies like Nautica make it more expensive for trademark holders to remain in the market while trying to defend their brand. Since these smaller companies don’t typically have the money to participate in an expensive legal battle against a wealthy business, it is common to see them back down in this predicament.

Palmerton, however, hasn’t. She made the decision to close her store on Bellwether Way, and found some refuge in Suffolk University’s law clinic, which took her case pro bono. Suffolk’s operates as a nonprofit practice that has law-school students represent clients for free. Palmerton would have owed well over $250,000 in legal fees without them.

“I thought Nautica would come in and buy us out, but instead it’s been a battle,” Christine’s daughter, Anneke Palmerton, says. “I’ve had to be emotional support because it’s hard, you know? Being a small business and not having a ton of money.”

Expansion and new investments for NautiGirl have been put on hold because of the case. Palmerton has to secure her trademark in this battle before she can license her business in additional markets, and she’s been waiting for over two years.

The Trademark Trial and Appeal Board is expected to come to a decision by May 2015 on whether Palmerton’s trademark will be revoked. If the decision is not in her favor, she plans on appealing to a federal court.

“I am the NautiGirl. I created the brand, and I’m not going to just lay down and die,” Palmerton says.

After all she has endured with this case, Palmerton continues to do shows where she can, and most importantly she stays true to herself. With the support of her family and pro bono legal assistance, she hopes to have NautiGirl come out victorious, stronger and naughtier than ever. It’s a difficult lesson in perseverance, but Palmerton knows a smooth sea never made a skillful sailor.