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The name game; Companies in legal tussle over trademark.

Byline: Aaron Nicodemus

WORCESTER - Call it the war of the T-shirts, "good" versus "nutz."

Life is nutz Inc., a West Boylston-based startup, has sued Needham-based Life is good Co. in U.S. District Court in Worcester, attempting to ward off a threat by "Life is good" to shut down "Life is nutz."

Earlier this month, Boston-based Life is good Co. sent a strongly worded letter to Life is nutz Inc., demanding that Life is nutz drop its U.S. patent application on the catchphrase "Life is nutz," stop selling Life is nutz products, and forward all products to Life is good for destruction.

Rather than wait for the inevitable lawsuit, Life is nutz responded with a pre-emptive strike, essentially asking U.S. District Court Judge F. Dennis Saylor IV to settle the dispute. Judge Saylor has presided over several trademark-infringement lawsuits recently, including Commerce Bank & Trust Co.'s case against Toronto-Dominion Banknorth, which was attempting to become "TD Commerce Bank." As a result of that lawsuit, TD Banknorth became TD Bank.

"We're not looking for anything from Life is good," said John T. Graff, a Worcester lawyer representing Life is nutz. "We're asking the judge to determine that what they are doing does not infringe on their trademark, and that Life is nutz be allowed to continue what they're doing now."

Kevin Brown of West Boylston started selling "What RU Nutz?" and "Life is nutz" T-shirts at triathlon competitions two years ago to raise money for charity. He's since added "Iron Nutz" and "Trinutz," both referring to triathlons. A national sales director for Thurston Foods and a passionate triathlete, Mr. Brown views the "Life is nutz" business venture as a way to support six charities that he and his partners believe in. Those charities include the Addiction Referral Center in Marlboro, and the Right Turn substance abuse recovery center for artists and musicians in Arlington. He estimated that he and his partners have raised $85,000.

"There is no financial reward right now," Mr. Brown said. "We understand that obstacles come in our way and we keep pressing forward." Life is nutz will donate 10 percent of its profits to those charities, and that percentage paid to charity will go up as sales increase, he said.

"We're starting up a business in this economy, and we're donating profits to charity; a lot of people would say we're nuts," said Bill Beers of Shrewsbury, another partner in Life is nutz.

Life is good is a $100 million company selling its products nationwide and in 29 foreign countries. The company holds several festivals every year and has raised $4 million through its charitable wing, the Life is Good Kids Foundation.

Life is good contended that Life is nutz is just another knockoff, like so many that Life is good has sued before.

"It's something I have to deal with on a daily basis," said John Banse, general counsel for the Life is good Co. "Products like these get our dander up."

Life is nutz "is copying our graphics, our font, and is a spinoff on our trademark," he said. "You're going to get consumer confusion. People will want to know, `Why is Life is good going negative?'"

In the past two years, Life is good has sued a Weston student for marketing "Life Sucks," unsuccessfully attempted to stop Korean electronics manufacturer LG from using "Life's Good" in an ad campaign, and sued another company using "Life is Gay."

Part of Life is nutz's defense is that the two products are different enough that people won't confuse them. The lawsuit also points out there are lots of other companies selling T-shirts with variations on "Life is," from "Life is God" to "Life is Balance" to "Life is Crap."

"The marks have different meanings, and they're intended to evoke a different response," said Mr. Graff, Life is nutz's Worcester lawyer.

Although Mr. Banse said that Life is good found out about Life is nutz when company lawyers saw the Life is nutz application with the U.S. Patent Office, Mr. Brown said he drew Life is good's attention to his startup.

Perhaps naively, Mr. Brown said he sought out Life is good for some advice on how to get started in the T-shirt business.

"We don't know the apparel business; we thought they'd help us out with contacts, that kind of thing," Mr. Brown said. "I guess it sort of backfired."

ART: PHOTOS; CHARTS

CUTLINE: (PHOTO) From left are Joe Turcotte, Kevin Brown and Bill Beers, officials of the company called Life is nutz. (CHART 1) Life is nutz Inc. (CHART 2) Life is good Co.

PHOTOG: (PHOTO) T&G Staff/RICK CINCLAIR
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Title Annotation:MONEY
Publication:Telegram & Gazette (Worcester, MA)
Date:Apr 29, 2009
Words:779
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