Have you ever walked into a restaurant and immediately felt déjà vu? Lawyers for burger chain In-N-Out got that feeling recently when they noticed strong similarities between the look, feel and menu styling of their client’s establishments and Aberdeen, Md.-based Grab-N-Go.
Eater and Huffington Post both reported on the lawsuit that In-N-Out’s lawyers filed against Grab-N-Go, as well as a similar case the company filed last month against Boise-based Burger Express. In both cases, In-N-Out claims the other guys’ logos and menus imitate its own much too closely, and the chain wants permanent injunctions making the other eateries change their looks.
Trade dress conflicts are different from trademark infringement cases, in which companies protect a specific word or phrase that has or will come to represent the company in the eyes of the public. Trade dress claims are less concrete, encompassing everything from the cuisine and names of the dishes to the menu font, furniture color and background music. A few similar elements can easily be a coincidence, and even if they’re not they don’t typically add up to a successful trade dress infringement claim. Rather, the concept of trade dress encompasses the entire look and feel of a restaurant.
It’s not unusual for restaurant concepts that prove popular to find themselves with imitators – restaurateurs see something that works and borrow significant elements of the original in the hopes of reaping similar success. When I was writing about restaurants in Denver several years ago, I spoke with Noodles & Co. founder and CEO Aaron Kennedy about a sudden raft of new noodle startups in other states that sounded suspiciously similar to the chain he had built beginning with a single store in 1995. By 2003, there were at least two chains trying to win publicity for concepts that threatened to come a little too close for comfort. Kennedy checked them out but ultimately decided that the imitators didn’t cross the line into trade-dress infringement.
Often for eateries the threat of copycat concepts taking away some of their business is a concern, but the real threat is that consumers disappointed by a less-than-perfect meal at the imitator will mistakenly blame the original chain. In other words, Kennedy told me then, the real danger from copycats is that they’ll get enough of it wrong to tarnish the original in the minds of consumers who haven’t even tasted the real thing.
Is imitation the sincerest form of flattery or are restaurants right to sue when copycats come too close? Tell us your thoughts in the comments.