Fur flies in trademark suit by Naples Wigglebutt Inn against Wigglebutt Doghouse

Greg Kahn/Staff 
 The Wigglebutt Inn on Jaeger Road in Naples on Dec. 16, 2011.

Photo by GREG KAHN, Naples Daily News // Buy this photo

Greg Kahn/Staff The Wigglebutt Inn on Jaeger Road in Naples on Dec. 16, 2011.

"The Wigglebutt Inn believes that your use of Wigglebutt Doghouse is confusingly similar to its The Wigglebutt Inn trademark and business name," the three-page letter said, warning it was infringing on the "valuable trademark."

— This fight is for the dogs — and the loser could end up in the doghouse.

It's a tale that began with a cease-and-desist letter in June, when an attorney for The Wigglebutt Inn in Naples wrote to The Wigglebutt Doghouse in Indianapolis.

"The Wigglebutt Inn believes that your use of Wigglebutt Doghouse is confusingly similar to its The Wigglebutt Inn trademark and business name," the three-page letter said, warning it was infringing on the "valuable trademark."

The letter pointed out the Indianapolis company's services — doggy day-care and sleepovers — are essentially identical to those offered by The Wigglebutt Inn — day care for dogs, boarding and baths.

It noted that Naples is a resort destination, so The Wigglebutt Inn has customers from Indianapolis, "further increasing the chances of customer confusion."

The letter politely suggested the Indianapolis doggy day care might not want to invest more money in its Wigglebutt name and gave it 14 days to confirm it would stop using Wigglebutt or similar names, such as Wiggle-butt or Wiggle Butt, in all advertising, promotional materials and its website, wigglebuttdoghouse.com.

The Wigglebutt Inn wants to make no bones about it: It's serious about its threat.

The Naples company recently filed a trademark infringement lawsuit against Plan B Enterprises LLC, which does business as The Wigglebutt Doghouse.

Filed in U.S. District Court in Fort Myers, the four-count lawsuit accuses the Indianapolis business of violating federal trademark laws and Florida law.

In this 2009 file photo, The Wigglebutt Inn owners, George and Karen Paul, are shown as they open their boutique-style cageless doggie day care and overnight boarding business on Jaeger Road.Donn Brown/Staff

Photo by DONN BROWN // Buy this photo

In this 2009 file photo, The Wigglebutt Inn owners, George and Karen Paul, are shown as they open their boutique-style cageless doggie day care and overnight boarding business on Jaeger Road.Donn Brown/Staff

"Despite The Wigglebutt Inn's efforts to protect its valuable trademark, including its cease and desist letter to the defendant, Wigglebutt Doghouse continues to misuse the mark to defraud the public," the lawsuit says. "The Wigglebutt Inn has no choice but to seek relief from this court to put an end to the irreparable harm that Wigglebutt Doghouse is causing."

George Paul, who runs the Jaeger Road doggy day care with his wife, Karen, said: "At the recommendation of our attorney, we're not allowed to speak at this point."

Repeated attempts to reach their attorney, Catherine Grieve of Miami, were unsuccessful.

The couple's boarding and day care, featured on wigglebuttinn.com, offers large indoor and play areas and "roomy, white picket fence boarding dens," including three large "ultra-special" dens to "allow your dog to watch TV and lounge in pure comfort." Just before Christmas each year, the couple donates a percentage of yearly profits to The Humane Society, Naples.

Repeated attempts to reach Benjamin A. Bierlein, who owns The Wigglebutt Doghouse and sports a WIGBUT license plate, were unsuccessful. His website shows a dog wiggling its butt in front of its doghouse.

The lawsuit notes that the Naples company, which soon will double its size by moving to a roughly 10,000-square-foot building on Pine Ridge Road, had extensively advertised since Sept. 9, 2009, when it opened.

Records show it registered its trademark June 1, 2010, with the U.S. Patent and Trademark Office, where it also registered the mark "Dogs Need Vacations, Too!"

In addition, it filed its trademark with the Florida Department of State Division of Corporations on Nov. 10, 2011, after incorporating in August 2008.

The lawsuit seeks an injunction to restrain The Wigglebutt Doghouse from competing unfairly by using The Wigglebutt Inn's registered mark.

By protecting its name with a trademark, the Pauls have the exclusive right to use "Wigglebutt" nationally for dog boarding and dog day care.

Indiana Secretary of State records show Plan B Enterprises LLC, which incorporated in May 2010, filed papers to do business as The Wigglebutt Doghouse on Sept. 29, 2010.

The lawsuit seeks an injunction to restrain The Wigglebutt Doghouse from competing unfairly by using The Wigglebutt Inn's registered mark. It asks to require it to provide an accounting of profits and to turn them over to the Naples couple, and to deliver all products, packages, labels, catalogs, tags, brochures, cards, ads, signs, displays, stationery, and other promotional materials to the Naples company so they can be destroyed.

The lawsuit asks Magistrate Judge Douglas Frazier to award the Naples company attorney's fees and triple damages for the "flagrant and deliberate" infringement and any profits or gains obtained due to the wrongful conduct.

A search of federal trademarks shows The Wigglebutt Inn is the only company using the two words together. The closest is Wiggle Butz Gourmet Pet Bakery & Gifts, a 2007 trademark that's been dead since February 2009.

In Florida, state incorporation records show only Wiggle Butt Pet Bakery And Boutique in St. Petersburg, which incorporated in June 2010.

Jennifer Whitelaw, a Naples trademark attorney, said "smart businesses" need to have the best legal strategy in the marketplace, including an expert offense and defense.

"In the current economy, protecting your trademark rights is paramount," Whitelaw said. " Some of the businesses that have not placed a priority on protecting intellectual property rights are getting sidelined right now."

With a trademark protecting the Naples company, a judge will have to decide if The Wigglebutt Doghouse can wiggle out of its legal woes.

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maxgreen writes:

I do not feel it is my place to butt in, so I will butt out.

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