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Lizzie Borden House Owner US Ghost Adventures LLC Has an Axe to Grind with the Coffee Shop Next Door

Nov 26, 2024

US Ghost Adventures LLC, a provider of ghost tours and “haunted experiences” across the United States, has owned and operated The Historic Lizzie Borden House bed and breakfast and museum in Fall River, Massachusetts since 1996. Its business is dependent, of course, on the infamous true crime story of accused axe murderer Lizzie Borden, who allegedly killed her parents in cold blood on the morning of August 4, 1892. History, THE HISTORIC LIZZIE BORDEN HOUSE (Last accessed Nov. 22, 2024). Capitalizing on this notorious story, US Ghost Adventures offers everything from ghost tours throughout the day to overnight stays in the allegedly haunted rooms of Lizzie Borden’s childhood home, where “[a] visitor is literally transported back to that morning when a perfect storm of events culminated in a double murder.” Id. To that end, US Ghost Adventures has registered various Lizzie Borden-related trademarks, including LIZZIE BORDEN, LIZZIE BORDEN MUSEUM, LIZZIE BORDEN GHOST TOURS, and even a stylized portrait of the woman herself in connection with ghost tours, hotel and restaurant services, museum services, and even gift shop products. 

In 2023, a coffee shop operating under the mark MISS LIZZIE’S COFFEE, owned by Mr. Joseph Pereira, moved in right next door. Its logo includes a coffee cup design and a bloody hatchet, and the shop itself features various large portraits of Lizzie Borden. In September 2023, US Ghost Adventures filed a federal lawsuit against the owner of Miss Lizzie’s Coffee, alleging, among other claims, trademark infringement. US Ghost Adventures LLC v. Miss Lizzie’s Coffee LLC, No. 23-2000 (1st Cir. Nov. 15, 2024) (order denying preliminary injunction).

The storefront of Miss Lizzie’s Coffee
Photo Gallery, Miss Lizzie’s Coffee (last accessed Nov. 22, 2024)

Much like the true crime story that provided the inspiration for both businesses, the US Ghost Adventures lawsuit has been rife with tales of sordid wrongs and ugly allegations of its own. According to Mr. Pereira, a “witness for US Ghost Adventures has posted Pereira’s criminal record throughout the Internet and [sent] copies to several vendors and agencies that [Pereira] uses in an attempt to embarrass him.” Dan Medeiros, Miss Lizzie’s Coffee Owner: Lizzie Borden House shared criminal record to shame me, The Herald News (Jul. 12, 2024). Meanwhile, US Ghost Adventures has also filed a defamation lawsuit against Mr. Pereira and an unnamed owner of a Facebook page titled “Boycott the Lizzie Borden House,” which has published claims that US Ghost Adventures is “unethical and predatory.” Dan Medeiros, Bad blood: Lizzie Borden feud escalates as café owner, Facebook page sued for defamation, The Herald News (Nov. 22, 2024).

It was US Ghost Adventures, however, that took the first real blow in the feud this week. Shortly after commencing its lawsuit, US Ghost Adventures followed up with a motion for a temporary restraining order and preliminary injunction to keep Miss Lizzie’s Coffee from using either the LIZZIE BORDEN trademark or the hatchet logo in connection with its business or marketing materials. US Ghost Adventures LLC v. Miss Lizzie’s Coffee LLC, No. 23-2000 (1st Cir. Nov. 15, 2024) (order denying preliminary injunction). Miss Lizzie’s Coffee objected to the motion, and the district court ultimately sided with the coffee shop and denied the injunction because it determined that US Ghost Adventures failed to demonstrate any likelihood of confusion between the parties’ respective trademarks. Id.

US Ghost Adventures appealed the decision, but the First Circuit United States Court of Appeals ultimately affirmed the district court’s decision. Id. The First Circuit, after noting that “trademark infringement requires more than the theoretical possibility of confusion; there must be a likelihood of confounding an appreciable number of reasonably prudent purchasers exercising ordinary care” went through a detailed likelihood of confusion analysis to review for clear error and ultimately concurred with the district court. Id. (Internal quotations omitted). Comparisons between the parties’ respective axe logos, MISS LIZZIE’S COFFEE, and LIZZIE BORDEN “[came] up empty,” and the market similarity of “hospitality services” broadly was also deemed insufficient to show likelihood of confusion, even despite the fact that the businesses are right next to each other. Id. The First Circuit also shot down US Ghost Adventures arguments relating to the strength of its marks and Miss Lizzie’s Coffee’s alleged intent to infringe.

Perhaps most interesting was the court’s discussion of the evidence of actual confusion. According to US Ghost Adventures, the district court entirely ignored its evidence on that front. The First Circuit clarified, however, that it appeared that the district court simply “interpreted that evidence differently than Ghost Adventures would have liked.” Id. That is, the district court determined the confusion stemmed not from the use of the parties’ respective trademarks themselves but from the close proximity of the businesses, the historical Lizzie Borden story generally, and the nearby historical site itself. Id.

Herein lies the difficulty of this case. Confusion as to source is obviously critical to the determination of trademark infringement, but what happens when confusion only arises because both businesses are trading off the fame (or infamy) of the same historical story? Should either party be able to claim ownership of that history? From its arguments, it seems that US Ghost Adventures is attempting to rely on the “goodwill” built-in Lizzie Borden as a historical figure and her story generally rather than the goodwill built its actual LIZZIE BORDEN trademarks through its use of the marks with specific goods and services. In that vein, it seems to have mistaken competition for infringement. Without other significant factors pointing to likelihood of confusion resulting from the use of the trademarks themselves, US Ghost Adventures’ case appears dead on arrival. 

Since the preliminary injunction was ultimately denied, Miss Lizzie’s Coffee will be able to fight on for now. Indeed, with both the district court and the First Circuit signaling the unlikelihood of US Ghost Adventures succeeding on the merits of this case, only time will tell whether this lawsuit will survive to the end.

By: Kaitlyn Garvin | kgarvin@sandsip.com 

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