COEUR D’ALENE, ID – A popular Central Idaho elk hunting equipment and education business has filed a trademark infringement lawsuit in federal court against a North Idaho business. Jacobsen Outdoor Group of Donnelly, doing business as Elk101 and Elk101.com, alleges that Rocky Mountain Hunting Calls & Supplies of Post Falls no longer had the use of its trademarks as of January 1st but has continued to sell its products on its website.
Corey Jacobsen, an 11-time World Champion elk caller, and professional hunter established his business in 2004 with the Elk101 social media and internet sites being adopted in 2009, according to the lawsuit. The business added an online store and began selling elk hunting gear using the Elk101 trademark shortly thereafter.
“In its first 5 years, the Elk101 website grew to generating over 5 million page views annually. In 2016, total pageviews increased to over 7 million. And in 2017, pageviews surpassed 9 million,” court documents say.
In 2015, Elk101 began developing “The University of Elk Hunting” online course, which provides educational and instructional services related to elk calling and hunting.
“Elk101 created the curriculum, wrote the copy for each chapter, produced the images for each chapter, and created the video components used in each chapter. The course was first offered in June 2016. Through November 2022, nearly 27,000 unique users have signed up for a membership to “The University of Elk Hunting” online course, with over 54,000 orders being placed. Elk101’s “The University of Elk Hunting” online course is considered to be the
most comprehensive resource for elk hunters,” the lawsuit says.
Jacobsen Outdoor Group claims that it owns common law rights in numerous trademarks based on Elk101’s use in commerce in connection with elk calls, camping and hunting equipment and gear, camping and hunting services, and hunting education services throughout the United States.
In 2010, with the popularity of Elk101 growing, RMHC reportedly approached Elk101 about the possibility of creating an Elk101-branded diaphragm elk call that could be promoted on both company platforms. This diaphragm elk call became the ELK101 ALL-STAR diaphragm elk call. They agreed RMHC would have a license to distribute and sell products bearing certain Elk101 trademarks, and, in return, RMHC would pay a 10% royalty. That agreement did not contain express terms regarding duration or termination.
“Starting in Q1 of 2011, RMHC began making quarterly royalty payments pursuant to the Royalty Agreement. From 2011 through 2021, RMHC’s royalty payments steadily increased,” court documents say.
In May 2022, RMHC allegedly made a payment to Elk101, which RMHC represented as its quarterly royalty payment for first quarter 2022 sales.
“This payment, however, was over 80 percent lower than the Q1 2021 royalty payment from RMHC to Elk101,” according to the lawsuit.
In July 2022, RMHC made a second-quarter payment to Elk101. However, the lawsuit says it was over 60% lower than the Q2 2021 royalty payment from RMHC to Elk101.
“In May 2022, and again in July 2022, Elk101 expressed surprise and concern to RMHC about the decreased royalty payments. In July 2022, Elk101 asked RMHC for an accounting of RMHC’s sales of products bearing one or more of Elk101’s Trademarks, including an accounting of RMHC’s accounts receivable. RMHC did not provide Elk101 the requested accounting information,” court documents say.
On November 19, 2022, Elk101 emailed RMHC to notify the company that the royalty agreement, including RMHC’s license of Elk101’s trademarks, would be terminated effective December 31, 2022. Elk101 demanded that RMHC cease all sales of any product bearing one or more of Elk101’s Trademarks; and informed the company that Elk101 would be realigning its brand with a manufacturer other than RMHC, according to the lawsuit.
As of January 1st, the lawsuit claims, RMHC began infringing Elk101’s trademarks “by intentionally continuing to sell and offer for sale products bearing one or more of Elk101’s Trademarks without Elk101’s authorization, permission, or consent, and without a license from Elk101. For example, RMHC intentionally continues to sell and offer for sale products bearing one or more of Elk101’s Trademarks without Elk101’s authorization, permission, or consent, and without a license via RMHC’s 2023 product catalog.”
A review of RMHC’s website today shows that products containing the Elk101 trademarks continue to be sold. (see photo)
In addition to trademark infringement, Elk101 alleges RMHC filed a U.S. Trademark Application for the word mark “ELK101” on February 17th for game calls and hunting game calls, claiming it had first used the mark in commerce as early as 2014.
“In the…Application, RMHC’s President, Dale Ames, declared to the U.S. Patent & Trademark Office under penalty of fine or imprisonment or both, that RMHC is the owner of the ELK101 mark, and/or that RMHC is entitled to use the ELK101 mark in commerce,” court documents say, adding that Ames also declared “that no other persons have the right to use the ELK101 mark in commerce.”
Elk101 reiterated that it had first used the trademark in commerce as early as 2011.
Meanwhile, RMHC filed a civil action in Idaho State court in February against Jacobsen personally, asserting claims for trade-secret misappropriation and breach of contract.
“In the Idaho Action, RMHC does not identify what specifically is supposedly a trade secret, alleging only that it supplied Mr. Jacobsen with “RMHC products, trade secrets, logos, and intellectual property, including film, pictures, and processes of manufacturing,” the court document says. “In the Idaho Action, RMHC does not explain or even state how, when, or where Mr. Jacobsen allegedly misappropriated RMHC’s alleged trade secret, alleging only that Mr. Jacobsen “continues to use … RMHC’s … trade secrets.”
In addition to requesting a jury trial, Jacobsen Outdoor Group asked the court for an award of damages “adequate to compensate Elk101 for RMHC’s infringement of Elk101’s Trademarks, unfair competition, breach of contract, and tortious interference; including unpaid royalties, lost profits, and disgorgement of RMHC’s profits; [an] award of Elk101’s reasonable costs and attorney’s fees; and…further relief as this Court deems just and proper.”