Secret Boston vs. Secret Boston

People in Boston are confused and it’s easy to see why:

Secret BostonTM is promoting an exhibit called “Imagine Van Gogh” through its website (I’ll call this company “McCormack” because it was founded by Michelle McCormack.)

Meanwhile, a different Secret Boston is promoting an exhibit called “Van Gogh: The Immersive Experience” through its website (I’ll call this company “Fever” because the website’s owned by Fever Labs, Inc.)

This sucks for customers. McCormack’s been getting calls from people who thought they were buying a ticket to her event but were actually buying a ticket to Fever’s event.

It’s also bad for the companies involved: They lose business and end up with pissed off customers.

Who’s in the wrong here? Based on the facts I can find, I’d say McCormack’s company has rights to SECRET BOSTON and Fever is infringing.

McCormack says she started using SECRET BOSTON in 2011. There are at least three facts pointing to a later use by Fiver.

  • As of August 2019, Fever’s website had nothing but a broken redirect.
  • Fever’s trademark registration for SECRET NYC claims first use in 2016. It’s hard to imagine its first use of SECRET BOSTON was 5 years earlier.
  • McCormack claims Fever tried to buy her trademark rights to SECRET BOSTON in 2016 and she refused to sell.

As of this writing McCormack and Fever are duking it out. Unless there are some key facts I don’t know about, Fever needs to find a way forward that respects McCormack’s clear prior rights.

Shout out to Bill B. who brought this to my attention.