$40,000/year private school sues school for low-income kids for $2M over "Commonwealth"

The Commonwealth School is a $40,000/year private school that occupies a couple of mansions in the Back Bay of Boston, in the Commonwealth of Massachusetts. The Commonwealth Academy is a pay-what-you-can school for underprivileged kids, located 90 miles away (also in the Commonwealth of Massachusetts).

The Commonwealth School is suing the Commonwealth Academy for $2M, asserting that the use of the word Commonwealth in the name of a school in a Commonwealth has caused it "irreparable harm" and "presently incalculable" damages.

From a trademark perspective, this is pretty much an automatic win for the Academy. The term "Commonwealth" it itself pretty generic, which weakens its trademark status (there's a reason Amazon is called "Amazon" and not "Bookstore"). The potential for confusion is effectively nil (no one planning to go to the Commonwealth School will have their pilot chopper them over to the Commonwealth Academy, shrug, and assume that the exclusive private school has been transformed into a place where the poors go). The Commonwealth School's trademark registration is for "Commonwealth School," not "Commonwealth" (because trademark). There's another Commonwealth Academy in Virginia, whose trademark was not opposed by the Commonwealth School. Finally, there's some shenanigans with the School's trademark, which was only filed in 2012, more than 50 years after the school was founded, but (coincidentally?) shortly after the Commonwealth Academy opened its doors (the School insists the two are unconnected, and it didn't know that the allegedly infringing Academy was up and running for four years before it took action).

But the realpolitik of litigation means that the Commonwealth School can almost certainly outspend and outlast the Commonwealth Academy, unless a bunch of people who could be more usefully funding education for poor kids instead raised a litigation slushfund to fight the case. As there's no guarantee that the Academy would recover legal costs when/if it prevailed, this should be considered money down the law-hole, no matter what the outcome.

"If no one who applies to the Commonwealth School would consider the Commonwealth Academy, and the other way around, that's . . . very powerful for the Commonwealth Academy," he said. "But if some students would be in a position to consider both schools, then that, to me, raises the stakes of someone finding a likelihood of confusion."

The institutions serve starkly different populations.

The Commonwealth School in Boston receives four or five applications for every open seat, Wharton said, and requires an admission exam and interview. The Commonwealth Academy in Springfield, on the other hand, never turns away a student, according to the academy's website.

The institutions' demographics also differ. Minorities make up 97 percent of the Springfield school's student body, Foley said in the e-mail included in court filings; at the Boston school, 28 percent are minorities.

And the Boston school charges more for two students than the Springfield academy charged all 60 who enrolled there last year. For all those students, the academy took in only $70,000 in tuition, Foley said in the e-mail.

A spokesman for the academy said students pay what their families can afford, and the rest comes largely from private fund-raising.

Back Bay academy sues Springfield school over the name 'Commonwealth'
[Jeremy C Fox/Boston Globe]

(Thanks, Josh!)