Waffle House Says Rap Song Called Waffle House Violates Its Trademark

from the um,-no,-it-doesn't dept

The latest in trademark bullying comes courtesy of a chain of restaurants called Waffle House, where (one assumes) waffles are served. But one thing Waffle House doesn't waffle on is its commitment to being a trademark bully and abusing trademark law. That's because it sent a cease & desist letter to rapper J.R. Bricks for daring to have a song called "Waffle House." The company claims that you can't do that without permission. To put it bluntly, the restaurant's lawyers are not being truthful. Waffle House appears to have a couple different trademarks on the phrase "waffle house" (and some more on the logo), but none are for anything having to do with music. One is for restaurant services and the other is for "Mugs, cups, portable beverage dispensers, thermal insulated beverage containers, and beverageware sold in registrant's stores located in its restaurants" as well as "Clothing, namely, shirts, t-shirts, jackets, ties and headwear sold in registrant's stores located in its restaurants."

I don't see how a song violates that trademark at all. Conceivably, Waffle House could have a common law trademark in a rap song, but I highly doubt it. This just seems like flat out bullying. Bricks said he thinks that Waffle House just doesn't want to be "associated" with hip hop:
"I don't think Waffle House's actions were motivated by racial discrimination," said J.R. Bricks, a Havana, Florida native and United States Air Force veteran now based in Atlanta, GA.

"But I do believe it is based on cultural discrimination," J.R. Bricks said. "I don't believe they want to see their company associated with the Hip-Hop lifestyle. The song portrays what we do in the South after we tear it down at the club. I don't speak on violence in the record. I just speak on having a good time."
Of course, that's got nothing to do with the purpose of trademark law, at all. There's no "likelihood of confusion" here, and any argument for "dilution" is simply ridiculous. This is Waffle House abusing trademark law to stop an artist from offering up a song that is perfectly legal.


Reader Comments (rss)

(Flattened / Threaded)

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    Hulser (profile), Aug 17th, 2011 @ 9:18am

    "Advertising is content is advertising" pitfall

    There's no "likelihood of confusion" here, and any argument for "dilution" is simply ridiculous.

    I agree, however...it's interesting to relate this to other stories on Techdirt about the business model of companies sponsoring musical artists. Before I read about this possible business model, if I would have heard a rap song that included a reference to the Waffle House, I would have just thought it was a song about some dude going to the Waffle House. But after...there might actually have been some doubt in my mind as to whether the artist was being paid by the Waffle House.


    a chain of restaurants called Waffle House, where (one assumes) waffles are served

    You assume? Mike, you haven't lived until you've been in a Waffle House at 3 AM on a Satuday night.

     

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      TCBloo (profile), Aug 17th, 2011 @ 10:02am

      Re: "Advertising is content is advertising" pitfall

      You assume? Mike, you haven't lived until you've been in a Waffle House at 3 AM on a Satuday night.
      I know right? It's a strange mix of fear and hilarity served with a side of good, cheap food.

       

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      Squirrel Brains (profile), Aug 17th, 2011 @ 10:28am

      Re: "Advertising is content is advertising" pitfall

      I stay away from Waffle House. Last time a family member went there, they got food poisoning. I know it is probably not systematic, but still...

       

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        Lion XL, Aug 17th, 2011 @ 12:17pm

        Re: Re: "Advertising is content is advertising" pitfall

        Actually it is sytemematic....my kids love waffle house, yet I never eat there(they're old enough to make their own bad decisions!!). Each waffle house has ONE 18 x 18 griddle, and cook everything on it at the same time, in the same puddle of grease (yes a puddle!!!). god forbid if you have a food allergy....

         

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          Any Mouse (profile), Aug 17th, 2011 @ 6:41pm

          Re: Re: Re: "Advertising is content is advertising" pitfall

          The ones in our city are very nice and clean. The griddle practically shines, and they are always cleaning. Dunno, I'd say it speaks more about the people that work in your area's restaurants.

           

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    Gabriel Tane (profile), Aug 17th, 2011 @ 9:55am

    Wait... Waffle House?

    My first legal response would be "you're freakin Waffle House... I'll call you when I need a plateful of grease. Until then, go away".

    In seriousness, it appears to be another sad example of a trademark owner thinking they can control every single instance of that particular grouping of letters coming together. Next, we'll see Coca-Cola suing VH1 for their rampant use of the word "coke" in every "I Love The 80's" episode ever made.

    What happens if the next cookie-cutter teen-star writes a song about the woes of teenage employment in “McJobs”… will McDonalds sue them?

     

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      Anonymous Coward, Aug 17th, 2011 @ 10:08am

      Re: Wait... Waffle House?

      What happens if the next cookie-cutter teen-star writes a song about the woes of teenage employment in “McJobs”… will McDonalds sue them?

      They actually already threatened to sue Merriam-Webster for adding "McJob" to the dictionary... but they didn't go through with it thankfully.

      http://en.wikipedia.org/wiki/McJob#History

       

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        Gabriel Tane (profile), Aug 17th, 2011 @ 10:10am

        Re: Re: Wait... Waffle House?

        I remember the pissing match over it. As a language purist, I disagreed with adding such a silly word to the dictionary (not violently or anything... it IS just a dictionary), but had less of a problem with it when it made McDonalds all grumpy >:)

         

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      ChurchHatesTucker (profile), Aug 17th, 2011 @ 10:10am

      Re: Wait... Waffle House?

      How do you get a trademark like 'Waffle House" in the first place?

      I need to open a diner called "Diner," or maybe a restaurant called "Restaurant."

       

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        :Lobo Santo (profile), Aug 17th, 2011 @ 10:14am

        Re: Re: Wait... Waffle House?

        "Waffle House" could just as easily be a reference to a construction company which specializes in designs made of reinforced "vulcanized batter" construction.

        Best to avoid confusion and get that trademark.

        ;-P

         

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          DCL, Aug 17th, 2011 @ 12:42pm

          Re: Re: Re: Wait... Waffle House?

          A Waffle house could be a building that shelters a group of people who change their views regarding certain ideas, bouncing between competing positions that interest them.


          WAIT!!!!! Shouldn't Congress be the one suing!

           

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        Anonymous Coward, Aug 17th, 2011 @ 10:19am

        Re: Re: Wait... Waffle House?

        How do you get a trademark like 'Waffle House" in the first place?


        Well, it's a completely generic description.

        But the lawyers who profit from those generic “trademarks” have more influence than the public. The courts heartlessly sell the public down the river.

         

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    Anonymous Coward, Aug 17th, 2011 @ 9:59am

    This story reminds me of "Dead Like Me" and the "Der Waffle House" I wonder if the people at Waffle House got a ll mad about this. Something else I wonder is why our "Waffle Houses" are called "Waffle and Steak" in Indiana but all the material inside the store say "Waffle House" Plus didnt the village people sing a song about the "Waffle House"

     

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    Anonymous Coward, Aug 17th, 2011 @ 10:21am

    Wouldn't this article be more likely to engender informed discussion if it included a copy of what is purported to be a C&D letter? Right now the only thing anyone knows is hearsay provided by the recipient.

     

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      Any Mouse (profile), Aug 17th, 2011 @ 7:12pm

      Re:

      Well, maybe blame the original article instead of the discussion blog post? Or you can go looking if someone posted a copy. Looking about I cannot find one, either, so it's possible that, if it exists, they didn't put it out for public dissemination.

       

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    A Dan (profile), Aug 17th, 2011 @ 10:37am

    Songs

    It makes one wonder how Holiday Inn felt about the "Holidae In" song.

     

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    Ukko, Aug 17th, 2011 @ 10:38am

    Watch Jim Gaffigan's Waffle House routine on YT, that's all you need to know about the company.

     

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    John Doe, Aug 17th, 2011 @ 10:51am

    Talk about locking up culture

    Can you really sing or write about anything today without getting someone up in arms over trademarks and copyrights? What happened to freedom of expression? Since when is talking about real entities a problem?

     

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    JR Smith (profile), Aug 17th, 2011 @ 10:53am

    I don't blame them. I wouldn't want my name associated with ANY (c)rap "song."

     

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    Digitari, Aug 17th, 2011 @ 11:03am

    hip hop

    I've been to ONE waffle house, seems hip hop would fit right in with the clientele and workers there

     

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    Bt Garner (profile), Aug 17th, 2011 @ 11:07am

    A simple solution.

    He re-records the song as "Awful House."

    Or does the Waffle House Legal Team (tm) have a trademark on that too?

     

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    Gwiz (profile), Aug 17th, 2011 @ 11:25am

    Lol. I guess Hootie & The Blowfish are considered OK since they used Waffle House's advertising campaign phrase "scattered, smothered and covered" as an album name in 2000, complete with a picture of a Waffle House on the cover.

    http://en.wikipedia.org/wiki/Scattered,_Smothered_and_Covered

     

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    Saxon (profile), Aug 17th, 2011 @ 11:35am

    Wo-Ho

    So are you saying that it's okay to write a song and name it "Burger King" or "Starbucks?" If you accidentally name your song after a business you've never heard of that might be one thing, but if you name your song "Waffle House" it's pretty clear you're trying to use their name to your advantage.

     

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    john troll, Aug 17th, 2011 @ 11:51am

    THIS IS NONSENSE

    I sure hope you can post the cease and desist letter. This cries out for a reply. And to be broadcast widely so that customers can put the necessary pressure on Waffle House.

    How is it that the Waffle House lawyers can stay in their own skin after they prostituted themselves so readily? There was a time when being an IP lawyer meant being a good guy/or girl, being on the side of the angels, advancing good against bad. Sadly, those days seem to be gone

     

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      Zot-Sindi, Aug 17th, 2011 @ 5:50pm

      Re: THIS IS NONSENSE

      There was a time when being an IP lawyer meant being a good guy/or girl, being on the side of the angels, advancing good against bad. Sadly, those days seem to be gone


      "long gone"? those days never existed

      oh you mean like in the eyes of the public? i guess so, people are starting to wake up

       

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    john troll, Aug 17th, 2011 @ 11:52am

    THIS IS NONSENSE

    I sure hope you can post the cease and desist letter. This cries out for a reply. And to be broadcast widely so that customers can put the necessary pressure on Waffle House.

    How is it that the Waffle House lawyers can stay in their own skin after they prostituted themselves so readily? There was a time when being an IP lawyer meant being a good guy/or girl, being on the side of the angels, advancing good against bad. Sadly, those days seem to be gone

     

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    Anonymous Coward, Aug 17th, 2011 @ 1:02pm

    Monster Waffle House FTW!

     

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    Anonymous Coward, Aug 17th, 2011 @ 1:27pm

     

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    cybernia (profile), Aug 17th, 2011 @ 2:27pm

    NRBQ

    Back around 1971 or so, NRBQ released a song called, "Howard Johnston's Got His Ho-Jo Working." Notice the added "t." They even sing Howard Johnston in the song.

    Could the legal dept way back then have worried about infringement?

    btw: they were one of may favorite bands

     

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    Warner Losh, Aug 17th, 2011 @ 2:48pm

    Not the first...

    David Wilcox has a song called Waffle House on his Turning Point album. Released in 1997.

    Wouldn't that prevent a claim by the legal doctrine of latches?

     

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