Michael Atkins writes about the frustrations of a restaurant owner who seems to think — oddly, for someone who’s already hired a lawyer — he can’t stop someone from copying his restaurant decor and theme.
Of course, Two Pesos v. Taco Cabana dealt exactly with that question, and pretty definitively, and, well, it did so 15 years ago. But Michael isn’t satisfied just embarrassing the New York Times, which also doesn’t get the story straight, asking opinions of chefs but not IP lawyers. He trots out the big guns — our friend Bob Cumbow, of course — and positively dices and slices the proposition.
Originally posted 2012-06-11 19:57:22. Republished by Blog Post Promoter
All Two Pesos held was that restaurant decor could function as a trade dress and could be inherently distinctive. So you could have valid trade dress rights in the decor. (Even under the inherently distinctive standard, you have to look different than the typical restaurant. Most upscale restaurants just try for a nice, conservative look — tasteful, but not distinctive in the trademark sense. It’s only the lower-end fast food and chain restaurants that might qualify.)
But the big hurdles, IMO, is showing likelihood of confusion — which Two Pesos did not get into. Restaurant patrons chose a restaurant by name, not by decor. If you go to, say, McDonald’s, are you suddenly going to think that you are in Burger King because of the decor? In most cases, that would seem to be a stretch. (If the name were also very similar, I could see copying the decor as bolstering the overall case.)
True, I have backed into the Two Pesos standard here — it stood for the positive, not the negative. I am saying that the case does require inherent distinctiveness, which of course is pretty relevant to likelihood of confusion.
Thanks for the “Big Gun” compliment, Ron. Means a lot coming from a veritable howitzer like yourself.