Angry Couple Using Trademark To Bully Oyster Bar Over Menu Item Names

from the aw-shucks dept

Trademark is for a lot of things (not it isn’t), but one of the things it is definitely not for is for jilted ex-business contacts to fight with 3rd parties because they are butt-hurt about not being able to pay the rent. And if that hasn’t confused you enough, come see what’s going on in Louisiana, where a couple that had purchased a restaurant and then, failing to pay the rent on time to the original owners, decided that they would go trademark-crazy on the new ownership that replaced them.

Mark Fayard and Susan Martisen purchased Metairie oyster icon Bozo’s and its trademarks in 2008 from elderly Chris “Bozo” Vodanovich, but after years of allegedly paying late rent on the property, the Vodanovich family successfully ousted them from the building in 2013 and the restaurant was no more. That’s when restaurateur Ed McIntyre swooped in and bought the actual property at 3117 21st St., revamping the restaurant and resurrecting beloved menu items and the legendary oyster bar, though under the Mr. Ed’s Oyster Bar & Fish House name. McIntyre had the blessings of Chris Bozo Vodanovich—a real passing of the reigns— who often visited Mr. Ed’s until he passed away at age 86 in late 2014.

Are we all clear? Fayard and Martisen bought Bozo’s restaurant and trademarks, but not the actual building, for which they had to pay the Vodanovich’s rent, and then promptly failed to pay the rent on time, leading to their eviction. It’s important to note that the restaurant closed down completely at that point. As in, it didn’t engage in commerce any longer. It ceased to be. It became an ex-restaurant. Which, of course, means the Bozo’s trademarks were no longer in use.

Not that this stopped Fayard and Martisen from sending a cease and desist letter demanding that Mr. Ed’s stop using a bunch of the trademarks they’re still claiming.

They sent a cease-and-desist letter demanding that the restaurant stop saying it’s been “Shucking Here Since 1979” or calling itself the “Oldest Standup Oyster Bar in Metairie.” The letter also demanded that Mr. Ed’s stop offering dishes with “Mr. Chris” in their names.

The duo are now suing Mr. Ed’s for allegedly not complying with the cease and desist, though the restaurant has since stopped describing itself as having the ‘oldest standup oyster bar in Metairie.’ As for the menu items, McIntyre argues that the two dishes known as “Mr. Chris Gumbo chicken and andouille gumbo” and “Mr. Chris homemade hamburger steak” are both an “homage to a man he called a friend for four decades” and not trademark infringement.

So, again, we have to people whose restaurant was shut down completely, suing the owner of a new restaurant for trademark violations on phrases and menu items they’re no longer using. And it’s apparently gotten petty enough that part of the dispute is over menu items harkening back to the man who owned the original restaurant, which is no longer in business. Sometimes I’m not really sure what trademark is actually for any longer, but I am quite sure it isn’t this.

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Companies: bozo's, ed's oyster bar & fish house

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Comments on “Angry Couple Using Trademark To Bully Oyster Bar Over Menu Item Names”

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26 Comments
Anonymous Coward says:

It's just jealousy...

Obviously the IP was so weak that they couldn’t make the restaurant work based on that alone.

So, when someone else stepped up to the plate and made it work, it’s because of the IP he “stole”?

No. They’re just jealous that the new guy can actually run a restaurant and make a profit! And they want a piece of that pie!

scotts13 (profile) says:

I don’t know – wouldn’t this depend on the terms of the contract under which the trademarks were sold? Since they were separate from the physical location, failure to pay rent may not have invalidated that sale. Perhaps the former restauranteurs plan to use the trademarks when they re-open in another location.

Certainly company names and trademarks have been sold and re-used before.

radix (profile) says:

Re: Re:

Yes! I don’t often disagree with the TD folks, but this may be a VERY legitimate use of Trademark law.

Being evicted doesn’t generally mean you forfeit all trademarks. Perhaps the marks were used as collateral in any bank loans (in which case the bank would have to file the IP lawsuit), or if the property owner filed a lien against those assets to recover back rent. But if this is a simple case of getting kicked out and, while looking for new funding, somebody else comes along and starts using your menu and marks, this could be exactly what Trademark law is intended for.

As a consumer protection law, who wouldn’t be confused by a “new” restaurant in the same location, claiming to be there for decades, serving the same menu? Mr. Ed’s is fully and completely piggybacking on the name and reputation of Bozo’s. If that’s not a trademark violation, then you might as well get rid of the law altogether, because nothing else would be a violation, either.

Name says:

Nononono, no, no! 'E's resting!

“It’s important to note that the restaurant closed down completely at that point. As in, it didn’t engage in commerce any longer. It ceased to be. It became an ex-restaurt.

Monty Python’s Dead Parot sketch comes to mind:

https://web.archive.org/web/20121012135336/http://www.mtholyoke.edu/~ebarnes/python/dead-parrot.htm

I was going to change the words around to reflect the situation,,,,but I haven’t had my coffee yet.

Shy Writer (profile) says:

Wrong use of the word "to"

In the trademark article on the oyster bar you used “to” instead of “two” in the last sentence.

I.e.; “So, again, we have to people whose restaurant was shut down completely, suing the owner of a new restaurant for trademark violations on phrases and menu items they’re no longer using.”

Regards,
Shy

Anonymous Coward says:

…It’s important to note that the restaurant closed down completely at that point. As in, it didn’t engage in commerce any longer. It ceased to be. It became an ex-restaurant. Which, of course, means the Bozo’s trademarks were no longer in use…

There are regulations in my area that as long as a business owner pays for and maintains their license(s) they have rights to whatever trademarks that business had, even if the business is not operating. While common with franchises even a single business gets this consideration. This usually occurs when a business loses it’s lease and is looking for new quarters but has to vacate it’s old location beforehand.

In this case were Fayard and Martisen maintaining their license(s) and actively looking for new quarters? If not then we have abandonment.

michael (profile) says:

First sentence ...

“Trademark is for a lot of things (not it isn’t), but one of the things it is definitely not for is for jilted ex-business contacts to fight with 3rd parties because they are butt-hurt about not being able to pay the rent.”

This sentence is so packed with errors and nonsensical that I wonder if it’s a result of round-tripping with an automatic translator.

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