A judge threw a curveball into a recent judgment in a civil lawsuit between former pilots that included a dispute over who could wear flight suits as part of their post-military businesses.
The jury ruled in favor of Afterburner Inc. after the company sued The Corps Group in 2009 for service mark and trade dress infringement. Afterburner CEO Jim Murphy said that the four defendants in the case stole business leadership training concepts developed by Afterburner to include flight suits, fighter pilot terminology and components of a business solutions website that display fighter pilot imagery.
The four defendants – John Borneman, Kyle Howlin, John Underhill and Carey Lohrenz – are former naval aviators who worked for Murphy -- an F-15 instructor pilot in the Georgia Air National Guard. The four spent various lengths of time at Afterburner before starting The Corps Group in 2008. Both companies offer management consulting and training services.
The inclusion of the flight suit grabbed the most attention as the pilot community questioned how a corporation could prevent former military pilots from wearing a flight suit. Even famed aviator Chuck Yeager got involved writing on his Facebook page in support of The Corps Group.
All parties involved in the suit assumed that following the ruling that the four defendants would be barred from wearing flight suits as part of the injunction. However, the judge overseeing the case wrote a footnote in the injunction stating that the jury did not define "what constitutes the specific elements of the Plantiff's trade dress."
The judge wrote that the trade dress was not appropriately defined during the trial and the injunction could not make assumptions post-trial.
"That is to say, while the evidence at trial indicated that the Plaintiff routinely used flight suits, camouflage netting, parachutes, seminar materials mimicking fighter pilot mission planning documents, video-display screens mimicking fighter jet radar screens, and/or fighter pilot theme music, the Court cannot conclude which item, or combination of these item, if any of them, make up the Plantiff's trade dress," the judge wrote.
The judge's footnote therefore seems to take the teeth out of the portion of the injunction filed against the four defendants that restricts them from using Afterburner's trade dress "when conducting motivational seminars, keynote speeches, or workshops that deliver business consulting services."
While the definition of Afterburner's trade dress was removed, the injunction did restrict The Corps Groups' use of Afterburner's service marks for terms like "Plan-Brief-Execute-Debrief-Win," "Task Saturation," "Execution Rhythm," and "Flawless Execution."
"They used our trademarks and trade dress to cause confusion in the marketplace and more importantly with our own clients," Murphy said in April. "We sought protection for the wrongful use of our trademarks and brand."
An official with The Corps Group said the company plans to appeal the jury's ruling that found the four defendants responsible for $788,649 in damages.
"This was a very complicated case. Like all fighter pilots we all learned a similar set of skills. The bottom line is there are three phrases and one chart we can't use," said Borneman, The Corps Group CEO. "We are looking forward to getting back to what we do best--using the unique leadership skills we learned in a combat environment to help our clients create high-performing teams."
Murphy said the injunction was in place and he had no further comment when contacted by Military.com.
-- Michael Hoffman can be reached at firstname.lastname@example.org