from the getting-crabby dept

It’s wonderful simply how most of the trademark disputes we cowl listed below are solely disputes as a result of the USPTO granted a trademark that it shouldn’t have. The examples of this kind of factor are legion, however they usually revolve round logos which can be both generic, descriptive, or each.

Which brings us to Chickie’s and Pete’s, a sequence of sports activities bars based mostly out of Philadelphia with places all through the nation. Chickie’s and Pete’s has a menu merchandise for which it received a trademark. That merchandise is “crab fries”. What are crab fries? Nicely, in accordance to the company’s own menu, they’re fries topped with crab meat and a aspect of dipping cheese sauce. If that doesn’t make the time period 100% descriptive, it is rather damned shut. Making this barely extra complicated is that the historical past of their crab fries is such that it didn’t at all times embody crab meat. Initially, it was simply Previous Bay spice that went over the fries.

However the USPTO granted the trademark anyway. And since then, the restaurant has bullied and/or sued other eateries over their very own use of the time period, typically to hilarious lengths.

The primary trademark for Crab Fries was registered in 1998 when Chickie’s & Pete’s expanded to Veterans Stadium. Two years later, the corporate went after a Northeast Philly restaurant known as Tony’s Place for serving a menu merchandise known as “crab fries” just like these made by Chickie’s & Pete’s. Their victory in court docket helped set the precedent that “crab fries” was legally protected whatever the precise meals concerned, BillyPenn reported in a rundown of the trademark’s historical past.

The proprietor of Tony’s Place put Chickie’s & Pete’s logos to the take a look at once more in 2013. Regardless of dropping the sooner case, the restaurant started displaying images of crabs subsequent to the phrase fries. In an 85-page grievance, Chickie’s & Pete’s argued this created “subliminal confusion” within the market and prompted “irreparable hurt” to the enterprise. A federal decide dominated that placing crab images subsequent to fries also infringed on the trademark, however denied claims of unjust enrichment that will have allowed Chickie’s & Pete’s to hunt restitution.

The plain query is in case you had been going to create a meals merchandise that consists of french fries topped with crab meat, what would you name it? You could possibly go together with a fantastic identify and trademark it, positive. However in case you’re not the kind of restaurant proprietor that wishes to trademark each final merchandise in your menu, you would possibly simply name them the plain: crab fries. As a result of it’s descriptive. Besides you may’t, or else Chickie’s and Pete’s attorneys will come calling.

And that’s what occurred most just lately to Betty’s Seafood Shack in New Jersey, which had a menu merchandise for crab fries till it obtained a stop and desist letter from Chickie’s and Pete’s.

In what could be the most literal instance but, Betty’s Seafood Shack in Margate obtained a cease-and-desist letter from Chickie’s & Pete’s attorneys final week saying the restaurant couldn’t use “crab fries” to explain fries topped with jumbo lump crab meat and house-made queso, in line with an Instagram submit by the restaurant. The submit features a picture of the letter citing Chickie’s & Pete’s three U.S. Federal Trademark Registrations.

That Instagram submit was itself complicated, because it seems the attorneys don’t actually even know what’s on their shopper’s menu. Right here is the outline from Betty’s as to the dialog they’d.

“So I known as the legal professional, and requested, ‘does Chickie use crab of their Crabfries?’ He stated, ‘uh, no….I don’t imagine so,’” the submit says. “Then I requested, ‘Does Chickie use Queso on their Crabfries?’ And he stated, ‘no, they don’t.’ So I stated, ‘then Betty’s is allowed to serve Crab and queso on fries so long as we don’t name them Crabfries, seeing you don’t put any crab in your Crabfries?’ And he stated, ‘Sure, that’s proper.’ I can’t make these things up. I stated, ‘okay.’”

Betty’s Seafood Shack agreed to drop the Crabfries identify and as a substitute go together with “Jumbo Lump Fries” when providing the particular sooner or later.

“Now we have Ceased and Desisted and concurrently have entered The Twilight Zone,” the submit says.

Besides for 2 issues. First, Chickie’s and Pete’s completely does put crab meat and queso on a minimum of some of its crab fries. Second…it shouldn’t fucking matter! The time period is descriptive in nature and never a fantastic time period. Should you stroll as much as a random individual that has by no means had this meals in any respect and requested them what they suppose crab fries are, they’re overwhelmingly more likely to reply that it’s a mixture of french fries and crab meat. Which is what Betty’s was promoting.

No matter that’s, it’s not trademark infringement. The USPTO by no means ought to have granted this mark within the first place and I can’t for a second think about a world wherein the mark would survive a petition for cancellation. However, as we at all times say, trademark bullying works. On this specific case, the menu identify for Betty’s has been modified in lieu of pricy litigation.

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Corporations: betty’s seafood shack, chickie’s & pete’s, tony’s place


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