Two Brazilian Restaurants Battle Over Trademark For Logos Because Both Include Fire

from the firing-off dept

For whatever reason, we've seen all kinds of trademark actions over logos that are claimed to be very similar, but which aren't. Most often these disputes center on the use of a single identifying thing within the logo, such as the umbrella in the Travelers Insurance logo, or the apple in the logo of, well, Apple. These disputes take trademark law, chiefly designed to aid the public in discerning between brands, and reduce it to slap-fights over the attempted ownership of images of everyday items.

But in the trademark spat between two Brazillian restaurants, Fogo De Chao and Espirito Do Sul, we see this sort of thing sink to a new low as the former is threatening to sue the latter over the use of fire in its logo. Yes, fire. You know, one of the first things early mankind was able to manipulate in order to start down the road of societal progress.

In January, Fogo de Chão's attorney sent a letter threatening legal action if Ludwig doesn't cease and desist from use of a "confusingly similar" trademark. The letter said Espirito's logo it uses a similar font, red flames, and description with the word Churrascaria in all capital letters and underscored followed by the words Brazilian Steakhouse.

The Dallas-based chain also accused Ludwig of using similar decor to mimic its restaurant's trade dress, a similar table presentation, the same side dishes, copying its Market Table salad bar and displaying murals depicting Brazil in a manner to mimic the ambiance of Fogo restaurants.
Okay, let's dispense with the items other than the logo so we can get back to the, ahem, meat of this matter. Similar table presentations and dishes would be expected, as these are both Brazillian restaurants. Including a salad bar is hardly trademark infringement, either. Nor is including images of Brazil within the restaurant because, again, Brazillian restaurant. The post also notes that Fogo is claiming that Ludwig developed his Espirito brand and registered its domain while still employed by Fogo and that he had signed an agreement as an employee that any intellectual property developed while employed belonged to Fogo. That's the kind of claim that sounds good, but would be difficult to both enforce and prove in court.

So, back to the logos. Here they are.



Similar? I don't know, maybe? The placement of the text and images is quite similar, sure, except those images are very different (save the existence of fire) and the largest text is the dedicated to the different names of each restaurant. Were one to try to make sure people knew these establishments were different, the best way to do so would be to put the names of each in the largest text, which is exactly what Espirito did. And that logo for Fogo above, by the way, is absolutely the most similar one I could find. Turns out the restaurant has a lot of logos, most of which are completely dissimilar to Espirito's. Companies are certainly allowed to have many logos for the same brand, but it sort of turns down the temperature on just how important a specific logo is if they do, doesn't it?

Turns out that Ludwig has decided he has a good shot at this in court and has decided to go on the offensive.

Fogo threatened to sue Ludwig if he didn't comply with their demands. However, Ludwig preempted the threat, filing his own lawsuit seeking a declaratory judgment that his company's trademark is not similar and the restaurant hasn't infringed on any trademark or trade dress rights owned by Fogo.

"The only similarity between the Spit Roast Mark and the Tent and Coffee Pot Mark is the fire contained in both marks," the Ludwig suit stated. "Fogo is not the exclusive owner of the use of fire in a logo for a restaurant. Fogo does not own the rights to the trade dress it claims. Fogo's alleged trade dress is not distinctive and is functional."
It's hard to argue with him, I think. One cannot trademark the concept of a Brazillian restaurant, after all. Nor can one trademark the commonplace imagery within such a restaurant. This is going to come down to whether the public is confused by the logos and I'm just not seeing it.

Filed Under: fire, restaurants, trademark
Companies: espirito do sul, fogo de chao


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  • icon
    That Anonymous Coward (profile), 17 Mar 2016 @ 12:57am

    BUT THEY HAVE MEAT AND WE HAD MEAT FIRST!!!
    WE STOLE THIS IDEA FROM BRAZIL SO IT IS OUR IDEA NOW!!!!

    Perhaps pay less to lawyers and focus all of that extra cash on providing the best service. Happy customers will remember where they ate, not just look at logos to see fire & think that is that good place.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 17 Mar 2016 @ 1:08am

    Consumer confusion in action

    I'd say they've got a pretty solid case actually, why just last week I was looking for a Brazilian restaurant and ended up at a place selling fireplaces instead because they had a fire on the sign. No food there sadly, so then I tried the local fire department. Bunch of large trucks, but no food there either. Ended up eating at what I originally thought was a McDonalds, due to the fact that they had a large 'M' in the sign, but turned out to be mexican food instead.

    If just anyone can use a picture of fire in their signs, or the word 'fire', then how is your average customer supposed to tell the difference between a specific Brazilian restaurant and a store that sells fireplaces(without, you know, reading the sign)? There is a very real chance for customer confusion here, and as such I believe that they deserve to prevail in their case on those merits.

    reply to this | link to this | view in chronology ]

    • identicon
      Padremellyrn, 17 Mar 2016 @ 6:35pm

      Re: Consumer confusion in action

      ... so then I tried the local fire department. Bunch of large trucks, but no food there either."


      Ah dude, you were just at the wrong Firehouse. Been to some Firehouse chili cook-offs, good stuff Maynard. Next time just look for the people being hosed out front. Also look for 'Lobster feeds', some have them regular.

      Now you have me wondering... Check the little box with the funky strips down the side and the flame on top but nope, no food, only tiny little sticks. Thought they were shoestring Potatoes with wasabi on the end at fist, but they weren't all that tasty..

      reply to this | link to this | view in chronology ]

  • identicon
    Michael, 17 Mar 2016 @ 4:45am

    In related news, Donald Trump sues both of them for infringement of his trademark on "you're fired!".

    reply to this | link to this | view in chronology ]

  • icon
    Christopher (profile), 17 Mar 2016 @ 5:11am

    Won't get decalaratory judgement

    The layout will damn the Spirit of the Sun. The layout is almost a perfect copy of the Fire Floor's logo: large graphic of fire cooking "something" on left, use of Caslon Antique as your font, use "Churrascaria Brazilian Steakhouse" as the tagline... I dunno, that pretty derivative, and if it's derivative with only a few changes, it could be confusing or misleading. They certainly compete in the exact same space.

    So, it's not "fire" that's at issue here, but as usual on Techdirt, accurate reporting never gets in the way of outrage.

    --#

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 17 Mar 2016 @ 5:56am

      Re: Won't get decalaratory judgement

      There is another franchaise here in Brazil that is called Vento Haragano. Same layout. Because it's what you expect from these places. They compete in quality and diversity of bovine cuts and exotic meats. It's very far from a slam dunk.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Mar 2016 @ 7:50am

      Re: Won't get decalaratory judgement

      yea... not seeing how one could confuse them. The closest thing to confusion one could get is that both may be brazilian steak houses (which is hardly confusion because both ARE brazilian steak houses.)

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 17 Mar 2016 @ 8:08am

      Re: Won't get decalaratory judgement

      Both 'churrascaria' and 'Brazilian steakhouse' are descriptive terms for what's being offered, so that's not likely to apply, if someone's confused by the text given the names are completely different they need to get their eyes checked, and the fires are notably different, one a 'campfire' style with a piece of meat on a spit above, with the other a flame with the restaurant name acting as the 'logs', and a kettle above with a wheel behind.

      reply to this | link to this | view in chronology ]

    • icon
      Lord_Unseen (profile), 17 Mar 2016 @ 9:00am

      Re: Won't get decalaratory judgement

      https://en.wikipedia.org/wiki/Churrascaria

      There's a reference for you. Basically, it's Portuguese barbecue, which is kind of big in Brazil. It would be like suing for the use of BBQ here in the US. It's not a tagline, it's simply telling you what it is. There's no way this lawsuit is going to stand.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Mar 2016 @ 2:28am

      Re: Won't get decalaratory judgement

      "The layout is almost a perfect copy of the Fire Floor's logo"

      I bet I can find 20 very similar layouts on a quick Google search in about 20 seconds. How unique do you think every restaurant sign needs to be? If they're unique enough to not confuse potential customers (which these certainly are), who gives a crap how similar they are in certain aspects?

      "as usual on Techdirt, accurate reporting never gets in the way of outrage"

      This is an opinion blog, not an investigative reporting venue.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 18 Mar 2016 @ 2:30am

      Re: Won't get decalaratory judgement

      "Churrascaria Brazilian Steakhouse"

      Oh, and that's an accurate description of the restaurant. Do you also think people should be sued because they say "Pizzeria / Italian restaurant" in the same way as another venue or do you think that would be idiotic like most sane people?

      reply to this | link to this | view in chronology ]


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