The most recent claim follows a disturbing trend in copyright and trademark claims over things occurring in public or common phrases or terms. (For a prior column, click here). We have often discussed the abusive expansion of copyright and trademark laws. This includes common phrases, symbols, and images being claimed as private property. (here and here and here and here and here and here and here and here and here and here). This included recently a New York artist claiming that he holds the trademark to symbol π.
The Chubby Noodle owners insist that the name and logo of the soon-to-be restaurant is “confusingly similar” to their own. Really? Wouldn’t this mean any adjectival reference to corpulence would violate the law? How about Plump Noodles or Tubby Noodles or Roly-Poly Noodles? The plaintiffs picked a simple descriptive title for their business and now claim that all adjectival reference for the rest of time must be avoided. While this claim rightfully seems insane to average people, it is not so bizarre to this area of law. We are seeing these claims multiply because Congress has repeatedly caved into a powerful lobby in Washington expanding these protections and has done nothing to rein in their copyright and trademarks firms. We have previously discussed how President Obama has repeatedly yielded to the “copyright hawks” who have steadily increased the penalties for copyright and trademark violations, including criminal penalties. Despite the abuse of average citizens by thuggish law firms and prosecutors, the Obama Administration continues to support draconian measures against citizens. The result is that firms may routinely send out these thuggish threats and claim ownership to such things as the skyline of New York city. It is small business and average people who are being victimized because they do not have any comparable lobby in Congress. Instead, members and the White House eagerly line up to increase penalties and yield more power in the area.
The defense by Fat Noodle shows how this field has become a joke told too many times. Listen to the defense statement on the charges: “Fat Noodle is a completely different concept from Chubby Noodle, and will have very focused, clean, and traditional foods using the highest quality products available. If anything, the owners of Chubby Noodle are trying to use our good name and press to enhance their own.” First, one only has to wonder what the “different concept” Chubby Noodle has if it is not to use “clear and traditional foods.” Putting that aside, why does it have to be a different concept. They are both noodle shops. I consider that a pretty narrow (skinny?) food concept. So what? It is like trying to ban “Fat Burgers” to protect “Big Burgers” or “Thin Mints” to protect “Skinny Mints.”
In my view, the filing is frivolous, but these claims are being enabled by an area of law that requires major revisions to protect common terms and images — and the public.
You can read the complaint as part of the story in the San Francisco Chronicle.