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Sexual Harassment Trainers Get Lesson on Trademark Law from SAT Creators.

CHARLOTTE, April 21, 2009 -- The Charlotte-based sexual harassment training company Education Training Specialists has been named as a defendant in a trademark action brought by the creators of the Scholastic Aptitude Test (SATs).

The lawsuit initiated today in the U.S. District Court for the Western District of North Carolina was filed by Educational Testing Service, creators and administrators of standardized tests such as the SATs, the Test of English for International Communication (TOEIC), the Test of English as a Foreign Language (TOEFL), and the Praxis Series of assessments.

Both companies use some variation of the mark ETS. Generally, the first party to use a trademark has the superior claim of ownership.

The pleadings state Educational Testing Service was formed in 1947 and they claim to have starting using the acronym ETS in 1948. According to the records maintained by the United States Patent & Trademark Office (USPTO), Educational Testing Service registered the word mark ETS in connection with printed materials in addition to services related to "Preparing Training Programs and Instructional Offerings, and Providing Courses, Workshops and Clinics for Educational Institutions, Government, Industry and Management." Educational Testing Service later registered stylized logos containing the acronym ETS in 1997 and 2003.

The defendants Education Training Specialists and company president Wendy Wylie are accused of using the mark ETS "to promote and sell their products and services to schools, educational institutions and businesses, specifically with respect to educational training, consultancy and research services related to sexual misconduct."

This suit was initiated after Education Training Specialists filed an application with the USPTO to register the mark ETS in connection with their sexual harassment educational services.

The complaint contains claims of trademark infringement, trademark dilution, unfair competition, and unfair & deceptive trade practices.

Because the ETS trademark is federally registered, Educational Testing Service could recover defendants' profits and any damages sustained by the plaintiff. In assessing damages the court may enter judgment for any sum above the amount found as actual damages, up to three times. When a court finds a defendant intentionally counterfeited a registered trademark, the court must, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever is greater, together with a reasonable attorney’s fee unless the Plaintiff elects for statutory damages up to $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed.