San Diego – TourSwing Golf LLC has filed a trademark infringement lawsuit against Callaway Golf over its “Octane” trademark.  The lawsuit, filed in U.S. District Court for the Western District of Wisconsin claims that Callaway maliciously, deliberately, and willfully stole the trademark.

Representatives for TourSwing believe that its competitor’s deliberate use of “Octane” stems from an earlier lawsuit.  In 2003, Callaway accused TourSwing for stealing its “Fusion” trademark.  Subsequently, TourSwing agreed to stop use of the name in 2004.

Soon after the “Fusion” lawsuit, TourSwing released its line of “Octane” drivers, which have been a top-selling brand for the Grafton, Wisconsin-based company.  It claims that after it agreed to stop using the “Fusion” trademark in 2004, Callaway tracked its website to make sure that in fact it was not using the mark.   In doing so, Callaway allegedly also tracked information on TourSwing product offerings and thus gained knowledge of the “Octane” trademark.

TourSwing officials claim that Callaway also gained awareness of “Octane” by having its display booth near the TourSwing booth at golf trade shows.  Callaway is currently selling the “Octane” brand under its “Diablo” line of golf clubs.  According to the complaint TourSwing states: “Purchasers of high-quality golf clubs have closely identified the “Octane” name and mark with TourSwing.  The “Octane” mark in the golf industry has become so associated with TourSwing that another company’s use of it in the golf world would create a likelihood of confusion amongst the consuming public…In fact, Callaway’s use of the “Octane” name on golf equipment already has caused actual confusion amongst members of the consuming public.”

In addition to stopping Callaway from using the trademark, TourSwing is also seeking unspecified monetary damages based on profits made from Callaway’s use of “Octane” and punitive damages “for its intentional and outrageous disregard of plaintiff’s rights and to deter similar acts in the future.”  Our advice to TourSwing on its next line of products: File a U.S. Trademark Application before ever using the trademark.  Problem solved.