When Competitors Make You Crabby

Everyone in the food industry wants to come up with their “secret sauce” — that unique ingredient (or combination of ingredients) that sets them apart from others.  But coming up with a secret sauce isn’t enough.  Once you do, you have to let consumers know.  After all, the point of having a “secret sauce” is to get customers to come back, time and time again, for more.

If you tell a lot of people about your “secret sauce,” how do you keep competitors from saying they are selling the same thing?  One way is through a trademark. A trademark gives you the exclusive right to use a certain term to describe your goods.  But you can’t trademark common terms.  Just ask any grower who tried to trademark “apples.” 

Chickie’s and Pete’s, a restaurant chain that has made a fortune selling (among other things) beer and “crab fries” to sports fans (who don’t seem to care that the crab fries are spicy enough to make you want several more beers) trademarked their “crab fries.”  Technically, this made them the only ones who could sell crab fries®.  This worked wonderfully until a crab shack in Kill Devil Hills, N.C. named itself Crabby Fries

Chickie’s and Pete’s sued to protect its trademark.    After all, if you don’t protect your trademark, you lose it.  Just ask Xerox® or the folks who invented (and use to have a trademark on) aspirin

But Chickie’s and Pete’s couldn’t get Crabby Fries to change its name.  Apparently they recognized that people were unlikely to confuse a crab shack in Kill Devil Hills, N.C. with the fries being sold north of the Mason Dixon line. 

So what are you supposed to do when someone says they are selling the same thing you are?  Sometimes you can work it out.  Other times you have to either defend your trademark, or push back and say there is no confusion (either because everyone knows the difference or because the trademark is really “generic”).  While that is expensive for everyone, sometimes you have to stand up for yourself.  Taking to the internet, and attempting to rally your supporters, can help (at least by driving more business to you so that you can pay for your lawyers).  Oh, and some people say that everyone wins in a fight like that because there is no such thing as bad publicity.

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Cozen O’Connor has a national team of attorneys experienced in handling food contamination and product recall coverage matters related to first-party, third-party and specialty policies. The firm also developed a Food, Beverage & Nutritional Products Industry Team to provide advice and counsel to a wide range of companies connected directly and indirectly to the food and beverage industry.
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