California Intellectual Property Blog


Elon Musk’s ‘The Boring Company’ Facing Trademark Infringement Lawsuit

The Boring Company trademark infringement lawsuit.

Elon Musk and Tesla have been sued over 1,000 times, but it’s Musk’s newer venture that’s now facing legal issues. The Boring Company started out as a subsidiary of SpaceX in 2016, but it became independent in 2018. A Nevada firm with the same name, however, has claimed that the use of this name constitutes trademark infringement against their intellectual property.

The Boring Company Lawsuit

On January 19, 2021 a Nevada LLC known as The Boring Company filed a trademark infringement lawsuit against Musk’s Delaware corporation with the same name. Elon Musk’s business and has recently made headlines by securing major infrastructure and tunnel construction contracts. The plaintiff in the case, however, says the Boring name belongs to them.

In the lawsuit, the smaller Nevada company claims they have been using the name ‘The Boring Company’ for over 15 years. Additionally, they state that they’ve used the trademark in commerce since 2008. And while it’s possible for two companies to have the same name without trademark issues, the same services are offered by both firms in this instance so there does appear to be issues.

The filing doesn’t mention that the Plaintiff has a trademark registration with the U.S. Patent and Trademark Office (USPTO). This creates hurdles for a firm trying to protect their trademark, but it doesn’t mean they’re without rights. The real question here is whether their underlying claim has merit.

Intentional Trademark Infringement?

There are many complex factors with this lawsuit. One of these – the possibility that intentional infringement occurred – is mentioned in the filing. The plaintiff claims that they were contacted via Facebook by Musk’s company in May 2017. This would seem to imply that the defendant knew of the plaintiff’s use, and this could cause issues for Musk.

Even though the plaintiff’s trademark is only registered in Nevada, it would still have priority if the lawsuit’s claims are accurate. Musk’s company would be expected to perform a trademark search prior to using the name. One of the big questions at hand, though, is why there was such a delay. If the plaintiff knew of the defendant’s use in May 2017, why wasn’t a lawsuit filed earlier?

In the court filing, the plaintiff says they were “informed and believed that Defendant’s activities were very limited in scope” and would only equate to the drilling of a test tunnel. The current lawsuit claims that a likelihood of confusion exists, but it seems as if this would’ve been the case in 2017 as well. This could make the case particularly tricky in that Musk’s company can potentially use a laches defense by claiming that the plaintiff waited too long to take action.

What Comes Next?

Elon Musk is no stranger to lawsuits, and he along with his companies have emerged victorious from many. The plaintiff has asked for several measures of relief – including an injunction, monetary damages and attorneys’ fees.

The plaintiff’s claims of trademark infringement, unfair competition, state infringement, common law infringement and deceptive trade practices on their face appear to many to have merit.  As such, a settlement of the claims is possible considering that the lawsuit states that the parties engaged in settlement negotiations over the last few years.


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