Two restaurants are now embroiled in a lawsuit after The Boiling Crab restaurant chain sued The Boiling Seafood for trademark infringement. The complaint boils down to this: The Crab alleges the Seafood is ripping off its concept as well as mimicking its name and logo. The question for the court is whether this is truly infringement or whether the Crab is just being shellfish.
As many of you know, I have been a long critic of our draconian copyright and trademark laws — an area where both parties have consistently yielded to the demands of powerful lobbyists. We have been discussing 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 and here). This included a New York artist claiming that he holds the trademark to symbol π. Even the Trump legal team sought to trademark “Keep America Great.” Campbell brought an action challenging the use of references like “chunky.”
I have read the complaint and reviewed the exhibit and I am not convinced, though I am admittedly a trademark skeptic over such actions. Boiled Crab insists that Boiled Seafood “adopted and began using with their knock-off restaurant a “Boiling Seafood” logo that featured the words “Boiling” and “Seafood” arranged above and below, respectively, a red crab design.” That however is hardly unique. Lot’s of business arrange their names just above and below a symbol of reduce space. The use of a red picture for shellfish it also hardly unique given the fact that you boil the food. Just look at Red Lobster. Indeed, I found a “Boiling Seafood” in Texas with similar word arrangement with a lobster in the middle. I found another restaurant in San Antonio with an anchor but the same word arrangement. It is actually a challenge not to find seafood restaurants with such typical imagery and lettering.
The two logos above from the complaint are neither confusing nor similar. The complaint also alleges that the menus are quite similar which is hardly surprising when both are serving seafood.
A review of the complaint leads me to conclude that Boiled Crab is just being a hard case. However such crabby litigation is nothing news. A few years ago, Joe’s Stone Crab Restaurant in Miami Beach sued Joe’s Crab Shack of South Florida. Nothing gets quite so heated as crustaceans in court.