Zioness Movement, Inc. v. The Lawfare Project, Inc.

Background

After an eight-day trial in March 2024, the jury found that both Zioness Movement, Inc. (ZMI) and The Lawfare Project, Inc. (LPI) owned the ZIONESS trademark. The jury also found that LPI had not proved by clear and convincing evidence that ZMI committed fraud against the U.S. Patent and Trademark Office when registering the mark. Judgment was entered on March 27, 2024.

The dispute concerned who first used and developed the ZIONESS mark. The trial evidence included that LPI’s founder and executive director, Brooke Goldstein, and its then-director of legal affairs, Amanda Berman, developed the mark in 2017 using LPI’s lawyers, public-relations consultant, funds, and fundraising channels. Berman later incorporated ZMI in February 2018 and filed the trademark application under ZMI’s name in April 2018. Berman maintained that the trademark belonged solely to ZMI, while Goldstein maintained that LPI was the rightful owner because the mark was developed and promoted as an LPI project.

ZMI’s Post-Trial Motions

ZMI made three requests:

- Under Federal Rule of Civil Procedure 50(b), it sought judgment as a matter of law, arguing that no reasonable jury could find that LPI was a co-owner. - Under Rule 59(a), it sought a new trial based on alleged errors in the jury instructions and the court’s evidentiary rulings. - Under Rule 59(e), it sought to amend the judgment, arguing that the jury’s co-ownership finding was inconsistent with its finding that LPI had not proved fraud by ZMI.

Judgment as a Matter of Law

The court denied ZMI’s Rule 50(b) motion. It held that the evidence was sufficient for a reasonable jury to find that both entities owned the mark and that both LPI and Berman contributed to its first use and development. The court noted evidence that LPI paid expenses and supplied personnel and other resources, while evidence that Berman incorporated ZMI, filed the application, and controlled the brand after leaving LPI created a factual dispute for the jury. The court also stated that trademark co-ownership is legally permissible.

Request for a New Trial

The court denied the Rule 59(a) motion. It found that the jury instructions accurately presented the central issue: whether Berman’s work involving ZIONESS was performed as an LPI employee using LPI resources or independently using her own time and resources. The court rejected ZMI’s arguments concerning licensing, damages instructions, fair use, and an adverse-inference instruction. It explained that ownership, rather than licensing or abandonment, was the central issue; that damages instructions could be separated from liability instructions; and that fair use was a defense raised by LPI, not ZMI. The court also found that ZMI waived its objection to the missing adverse-inference instruction by failing to request it before the jury was discharged, and that the available evidence did not justify giving the instruction.

The court likewise upheld its evidentiary rulings. It found no harmful prejudice from excluding a 2019 email because ZMI was allowed to cross-examine Goldstein about it; found testimony about a domain name cumulative; concluded that LPI’s payments were relevant to ownership; rejected ZMI’s argument that an oral, terminable-at-will trademark license could not be valid; and upheld the exclusion of accountant Nancy Kelly’s proposed lay testimony about accounting treatment.

Request to Amend the Judgment

The court denied ZMI’s Rule 59(e) motion. It held that ZMI had not objected to the alleged inconsistency before the jury was discharged, which waived the objection. It also found that co-ownership was not legally impermissible and that the finding that LPI had not proved fraud by clear and convincing evidence was not inconsistent with the co-ownership finding.

Disposition

The court denied ZMI’s motion on all grounds and instructed the Clerk to terminate ECF No. 232. The jury’s co-ownership verdict and the judgment therefore remained in place.