Just Being Shellfish? Boiling Crab Sues Boiling Seafood Over Infringement

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.

17 thoughts on “Just Being Shellfish? Boiling Crab Sues Boiling Seafood Over Infringement”

  1. Hahaha…this article is hilarious. Embroiled, shellfish 😆

    Some of these lawsuits are just silly. There are only so many ideas in the world, the world is finite and repeats like a broken record. So are the ideas inside, same thing.

    What’s the adage? There is only so many ways to screw in a light bulb. Or is that the Mandela effect…idk.

  2. Frivolous lawsuit. You cannot trademark a cooking method or an item of food.

    Otherwise “Crabby Patties” would be in trouble.

  3. Speaking of two parties to a law suit, how about America sues China for knowing, willful and deliberate withholding of early, critical information regarding the COVID-19 outbreak, and for damages, in the initial amount $5 trillion, for willful dereliction and negligence resulting in severe illness, trauma, death and financial disaster, through its failure to monitor and control food acquisition and processing practices in China which resulted in the transmission or “hopping” of the current adaptation of the coronavirus from animals to humans and the subsequent world-wide propagation of COVID-19.

    1. China, Derelict and Negligent for 100 Years, Was the Origin of 1918 “Spanish Flu” and the 2020 “Wuhan Flu.”

      “1918 Flu Pandemic That Killed 50 Million Originated in China, Historians Say
      Chinese laborers transported across Canada thought to be source.”

      Dan Vergano, January 24, 2014

      “The global flu outbreak of 1918 killed 50 million people worldwide, ranking as one of the deadliest epidemics in history.

      “For decades, scientists have debated where in the world the pandemic started, variously pinpointing its origins in France, China, the American Midwest, and beyond. Without a clear location, scientists have lacked a complete picture of the conditions that bred the disease and factors that might lead to similar outbreaks in the future.

      “The deadly “Spanish flu” claimed more lives than World War I, which ended the same year the pandemic struck. Now, new research is placing the flu’s emergence in a forgotten episode of World War I: the shipment of Chinese laborers across Canada in sealed train cars.

      “Historian Mark Humphries of Canada’s Memorial University of Newfoundland says that newly unearthed records confirm that one of the side stories of the war—the mobilization of 96,000 Chinese laborers to work behind the British and French lines on World War I’s Western Front—may have been the source of the pandemic.

      “Writing in the January issue of the journal War in History, Humphries acknowledges that his hypothesis awaits confirmation by viral samples from flu victims. Such evidence would tie the disease’s origin to one location.

      “But some other historians already find his argument convincing.

      “This is about as close to a smoking gun as a historian is going to get,” says historian James Higgins, who lectures at Lehigh University in Bethlehem, Pennsylvania, and who has researched the 1918 spread of the pandemic in the United States. “These records answer a lot of questions about the pandemic.”

      – National Geographic

  4. Two different things. One says seafood one limits itself to crab and the rest is the province of the cook book recipes. I would look at those and if I didn’t want crab preferred shrimp go to the one that said Seafood. If I wanted crab I would expect to see a Bubba Gump style recipe of nothing but.

  5. Typical landlubber. You don’t boil crabs; you steam them. With lots of Old Bay!

  6. In our hyper-emotional age and tendency to engage in anthropomorphism, I’d guess more people prefer dining on crabs that look like they are happy before they’ve been boiled. Boiling Seafood’s crab looks quite pleased to be boiled. I like his attitude.

    BS wins.

  7. Last time we stopped in at a Red Lobster (outside of Utica), we managed to find one (1) item on the entree menu that wasn’t slathered in garlic. For whatever reason, we haven’t been back.

  8. Does this state have anti-SLAPP? This suit is a non-starter IMHO.

    1. Anti-SLAPP laws address what used to be called “barratry” (which now has a very specific and technical meaning in some places, while it addresses malignant misuse of the courts in others).

      The case in question may be tiresome to contemplate, but it addresses a valid point that probably should be resolved in court one way or the other. Unfortunately, common law precedent isn’t so efficient (even in the day of the Internet) as to assure what the court in question decides is just will prevent others from re-hashing the same question over and over again.

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