SCOTUS Denies Petition Seeking Review of Second Circuit’s Trademark Co-Ownership Ruling

The U.S. Supreme Court on Monday denied certiorari in Zioness Movement, Inc. v. The Lawfare Project, Inc., a case in which Zioness Movement sought review of a U.S. Court of Appeals for the Second Circuit decision that upheld a jury verdict allowing two competing nonprofit entities to co-own the “Zioness” trademark.

According to the petition for a writ of certiorari filed by Zioness Movement, the case centered on the word mark Zioness, which was first used in August 2017. The filing recounted that Amanda Berman, the founder of Zioness Movement began using the mark while she was still employed as the Director of Legal Affairs at The Lawfare Project, Inc. During that month, Amanda Berman and Brooke Goldstein, the founder and executive director of The Lawfare Project, Inc., attended a march in Chicago and labeled themselves and their supporters “Zioness.” The Lawfare Project, Inc., funded the initial creation of the Zioness mark, including the logo, website, and merchandise, and retained a public relations firm to help develop the brand.

The dispute arose after Zioness Movement registered the trademark with the United States Patent and Trademark Office (USPTO) as the sole owner in May 2020. The Lawfare Project subsequently filed a petition to cancel the registration, alleging ownership and fraud on the USPTO. Zioness Movement then filed a civil action in the U.S. District Court for the Southern District of New York seeking a declaratory judgment of ownership, and The Lawfare Project counterclaimed, asserting the same.

In the district court, following the trial before Judge Alvin K. Hellerstein, the jury determined that both Zioness Movement and The Lawfare Project, Inc. owned the trademark and that Amanda Berman had not committed fraud. The district court also ordered a $20,000 discovery sanction against The Lawfare Project, Inc.

On appeal, the Second Circuit, in a summary order issued on August 13, 2025, affirmed the district court’s judgment on the trademark co-ownership issue. The Second Circuit held that Zioness Movement had waived its objection to the co-ownership verdict by failing to object to the verdict sheet, which explicitly included “both” as a potential answer to the question of who owned the trademark. The Second Circuit further held that even if the verdict were reviewed, Zioness Movement could not establish the fundamental error required to reverse after waiver because co-ownership is not inherently prohibited under trademark law. However, the Second Circuit vacated and remanded the district court’s denial of attorneys’ fees under Section 505 of the Copyright Act, finding that Zioness Movement and Amanda Berman prevailed on the copyright claims after The Lawfare Project, Inc. voluntarily dismissed those claims with prejudice.

In its petition to the Supreme Court, Zioness presented three questions. The first question asked whether a court or jury may find joint ownership of a trademark between competing entities without violating the principle that a trademark must indicate a single source. The second question asked whether Zioness Movement waived the legal argument against joint ownership by not objecting to a verdict sheet, despite having objected to the underlying jury instructions. The third question asked whether the district court was required to instruct the jury to consider which entity used the trademark in a source-identifying way.

A central argument presented to the Court was that permitting joint ownership of a trademark by two competing entities in the same market directly contradicts the core purpose of trademark law. Zioness Movement contended that the decision undoes the twin purposes of trademark law, which are source identification and the avoidance of consumer confusion. The filing highlighted the Supreme Court’s statement in Jack Daniel’s Properties, Inc. v. VIP Products LLC that confusion as to source is the “bête noire of trademark law.” It further argued that the district court failed to instruct the jury that ownership of a mark requires continuous use that identifies the user as the source of the mark.

The Zioness Movement also contended that the Second Circuit’s finding of waiver deepened a circuit split on whether an objection that has been raised and ruled upon must be restated. The filing highlighted the conflict between the Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits, which permit exceptions to the strict restatement rule, and the First and Seventh Circuits, which adhere to a stricter “ironclad rule” requiring restatement. Moreover, it urged the Court to extend its holding in Dupree v. Younger and rule that objections to legal instructions provided to the jury preserve arguments on appeal, including arguments about the contents of a verdict sheet.

In its brief in opposition, The Lawfare Project, Inc. argued that Zioness Movement expressly waived any objection to the co-ownership outcome by stating at the charge conference that it had “no comments to the verdict sheet.” The Lawfare Project, Inc. emphasized that Zioness Movement’s objections to the jury instructions did not concern the potential outcome of co-ownership. The filing relied on Springfield v. Kibbe, in which the Supreme Court dismissed a writ of certiorari as improvidently granted after discovering that the appellant had failed to timely object to the jury instruction at issue.

The Lawfare Project, Inc. also asserted that there is no circuit split on the substantive trademark question, noting that no circuit court has ever held that co-ownership of a trademark is categorically prohibited. The filing pointed to multiple district court decisions recognizing that joint ownership is legally permissible, such as Mikhlyn v. Bove, Piccari v. GTLO Productions, LLC, and East West Tea Co., LLC v. Puri. The Lawfare Project, Inc. noted that Zioness Movement itself admitted in its reply brief to the Second Circuit and in open court that “co-ownership can exist” in trademark law. The Lawfare Project, Inc. maintained that both entities jointly developed and first used the mark on the same date through the same conduct, and that the co-ownership finding reflects the reality of the mark’s origins. The Lawfare Project, Inc. further contended that the challenge was premature because no concurrent registrations had been issued and no limitations on use had been considered by the Director of the United States Patent and Trademark Office.

In its reply brief, Zioness Movement reiterated that permitting two competing entities in the same market to co-own a trademark undoes the twin purposes of trademark law. It argued that The Lawfare Project, Inc. appeared to concede that the co-ownership outcome is “unworkable and impracticable.” The filing warned that once the appeals process is completed, the final decision will be reported to the USPTO, which will update the trademark registration to reflect co-ownership. Zioness Movement distinguished Springfield v. Kibbe that the petitioner did not object to the relevant jury instruction and proposed its own comparable instruction, however Zioness Movement timely objected to the jury instructions and raised the questions presented on appeal.

The filing also urged the Court to provide clear guidance on joint and concurrent ownership under the Lanham Act, arguing that joint or concurrent ownership can be created only by the joint, continuous use of a mark to identify the source. Zioness Movement contended that an employee’s use of a trademark for a separate organization does not automatically confer an employer with trademark rights in that mark. Ultimately, the Court declined to grant certiorari, thereby upholding the Second Circuit’s decision and the jury verdict allowing co-ownership of the trademark.

Image Source: Deposit Photos
Image ID: 4540592
Author: Rangizzz