In 1892, it was alleged that Lizzie Borden hacked her father and stepmother to death with a hatchet in their family home. A jury acquitted Lizzie Borden of all charges. This macabre tale of unsolved murder has given rise to the ditty: 

"Lizzie Borden took an axe / And gave her mother forty whacks; / And when she saw what she had done / She gave her father forty-one."

US Ghost Adventures, LLC provides ghost tours and related hospitality services, including a bed and breakfast that is operated out of Lizzie Borden's ancestral home featuring a museum, so-called "ghost tours," and kindred activities. Ghost Adventures owns incontestable federal trademark registrations for the name "Lizzie Borden" and for a realistic hatchet logo displaying a notched blade in connection with hotel and restaurant services. 

Separately, Miss Lizzie's Coffee LLC later opened a coffee shop next door to the Lizzie Borden House. Its storefront signage displays the words "Miss Lizzie's Coffee" between a cup of coffee and a stylized hatchet spewing blood. A second sign, with similar accoutrements, advertises Miss Lizzie's as "The Most Haunted Coffee Shop in the World!" The hatchets on both signs include handles and dramatic blood splatters. 

Since Miss Lizzie's opened, some visitors have incorrectly assumed that the Lizzie Borden House and Miss Lizzie's are affiliated. For example, one tour guide explained that tourists were frustrated to learn that they could not bring Miss Lizzie's coffee on their tours of the Lizzie Borden House, having bought the coffee under the erroneous impression that the coffee shop was affiliated with the B&B. 

Ghost Adventures sued Miss Lizzie's for trademark infringement and unfair competition, and sought a preliminary injunction. The district court denied the preliminary injunction, finding that Ghost Adventures was unlikely to succeed on the merits.  US Ghost Adventures, LLC v. Miss Lizzie's Coffee LLC, No. 23-12116, 2023 WL 8367730 (D. Mass. Oct. 27, 2023). 

On appeal, the First Circuit affirmed, noting "any confusion due to proximity or common reference to historical lore is not the type of confusion that trademark owners may prevent." US Ghost Adventures, LLC v. Miss Lizzie’s Coffee LLC, No. 23-2000, __ F.4th __ (1st Cir. Nov. 15, 2024). Ghost Adventures does not own the lore of Lizzie Borden, and Ghost Adventures' registration of the "Lizzie Borden" mark did not prohibit other businesses from marketing themselves by the use of Lizzie Borden's story. 

In addition, "Miss Lizzie's hatchet spews blood, whereas Ghost Adventures' is spotless," such that the only similarity between the hatchet logos is that they both depict hatchets. "[T]he meaning associated with the name ‘Miss Lizzie's Coffee' is only incidentally similar to that of the ‘Lizzie Borden House.'" 

Furthermore, there was a sign taped to Miss Lizzie's storefront that conspicuously stated: "Miss Lizzie's Coffee is NOT ASSOCIATED, NOR AFFILIATED in any way with the Lizzie Borden Museum or Bed and Breakfast next door, nor any other business." The Court noted that effective disclaimers can "tip the scales to a finding of no likelihood of confusion and no infringement." Ghost Adventures, 2023 WL 8367730, at *4 (quoting 4 McCarthy on Trademarks § 23:51 (4th ed. 2002)). 

Professor Tushnet noted that there is a "difference between owning a mark for something and confusion about affiliation, which is a very different animal."