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Supreme Court Holds that TLOC Senior Living has a Common Law Right to Its Trade Name

In TLOC Senior Living, LLC v. Albert R. (Alpine) Bingham III, 2016 VT 44 (April 8, 2016), the Vermont Supreme Court affirmed the trial court’s declaratory judgment order in favor of plaintiff. Langrock attorney Alison J. Bell represented the plaintiff.

Issue: Plaintiff owned and ran a senior living community in Middlebury under the name “The Lodge at Otter Creek.” When plaintiff inadvertently failed to re-register the name, defendant registered “The Lodge at Otter Creek” under his own name with the Vermont Secretary of State’s office in July 2013. Plaintiff filed suit alleging slander of title, trade name infringement, unfair competition, and tortious interference with contract. After several back and forth motions, the trial court found that while defendant had been able to register the name, he was not able to use it. Plaintiff then sought a declaratory judgment that it retained the “The Lodge at Otter Creek” as its trade name under common law, and the court granted its motion.

Holding: The Supreme Court affirmed the order granting declaratory relief to plaintiff, finding that the trial court did not err in finding that plaintiff had a common law right to “The Lodge at Otter Creek” as its trade name. The Court also affirmed the trial court’s finding that, while plaintiff retained a common law right to the trade name, plaintiff was not actually entitled to use it under 11 V.S.A. §1623(a), which requires the registration of business names.

Dissent: Dooley, J. dissented, arguing that the trial court should have also granted a declaratory judgment to plaintiff stating that it would be unlawful for defendant to use the same trade name under 11 V.S.A. §1623(a). Because the trial court granted declaratory relief to plaintiff regarding only the common law right to the trade name, the effective result is gridlock; neither defendant nor plaintiff can use the name “The Lodge at Otter Creek.” Justice Dooley argued that this was likely not what the Legislature intended, and noted that a broader reading of the statute might be appropriate.

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