Judge tosses Girl Scouts' recruitment suit vs. Boy Scouts

The Girl Scouts said it was “deeply disappointed” in the decision and will appeal

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A federal judge rejected Girl Scouts' claims Thursday that the Boy Scouts created marketplace confusion and damaged their recruitment efforts by using words like "scouts" and "scouting" in recruitment drives.

Manhattan Judge Alvin K. Hellerstein ruled the Boy Scouts of America can describe their activities as "scouting" without referring to gender and that the matter does not need to be put to a jury.

Patches cover the back of a Girl Scout's vest at a demonstration of some of their activities in Seattle, June 18, 2018.

Patches cover the back of a Girl Scout's vest at a demonstration of some of their activities in Seattle, June 18, 2018. (AP Photo/Elaine Thompson, File)

Hellerstein said his written decision caps a "serious, contentious and expensive" litigation and necessitates dismissal of the lawsuit brought by the Girl Scouts of the United States of America.

"In truth, Girl Scouts' complaint is based, not on concern for trademark confusion, but on fear for their competitive position in a market with gender-neutral options for scouting," Hellerstein wrote. "Though Boy Scouts and Girl Scouts may now compete more than they once did, neither organization can preempt the other's use of the Scout Terms and their trademarks are not likely to be confused."

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The lawsuit was filed in late 2018, a year after the Boy Scouts announced that boy scouting and cub scouting would be open to girls, leading the organizations to compete for members after social trends and a rise in sports league participation drove down membership for decades. The pattern worsened when the pandemic hit.

"The Boy Scouts adopted the Scout Terms to describe accurately the co-ed nature of programming, not to confuse or exploit Girl Scouts' reputation," Hellerstein wrote. "Such branding is consistent with the scout-formative branding Boy Scouts has used for a century, including in its co-ed programs that have existed since the 1970s."

Boy Scouts from Troop 55, of Falls Church Va., prepare for the approaching the National Independence Day Parade on Constitution Avenue in Washington D.C. on July 4, 2019.

Boy Scouts from Troop 55, of Falls Church Va., prepare for the approaching the National Independence Day Parade on Constitution Avenue in Washington D.C. on July 4, 2019. (Bill O'Leary/The Washington Post via Getty Images)

The term "scout" is descriptive of both the Boy Scouts' and Girl Scouts' programming, the judge wrote.

"The Boy Scouts' decision to become co-ed, even if it affects Girl Scouts' operations, does not demonstrate bad faith," the judge added.

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Hellerstein's decision comes while the Boy Scouts are in bankruptcy proceedings in Delaware that began in February 2020. The Irving, Texas-based organization sought bankruptcy protection after it was named in hundreds of lawsuits brought by individuals claiming they were molested by scout leaders as minors.

Miami Beach, Veterans Day Parade, Girl Scouts troop marching with banner.

Miami Beach, Veterans Day Parade, Girl Scouts troop marching with banner. (Jeff Greenberg/Universal Images Group via Getty Images)

The Girl Scouts said it was "deeply disappointed" in the decision and will appeal.

"This case is about ensuring that parents are not misled into thinking that Girl Scouts are part of or the same as the Boy Scouts," the organization said in a statement.

In a statement, the Boy Scouts said the ruling had vindicated its position.

It noted that 305,000 girls are currently enrolled in its programs and that since full participation was permitted beginning in 2019, more than 2,200 females have become Eagle Scouts.

It said it "looks forward to welcoming more girls into our positive, life changing programs."

In his decision, Hellerstein wrote that he was siding with the Boy Scouts in part because the Girls Scouts cannot prove that a likelihood of confusion was caused by the Boy Scouts' use of the term "scout."

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He said the Girl Scouts had cited instances of parents confusing the two organizations. But he added that the choice to join one organization or the other is made after several interactions with the organization, by children's desires to join a group siblings or friends have joined, or other factors unrelated to trademarks and branding.