Sunday, June 07, 2015

Patent reform issue: "If it does get into litigation, right and wrong is hard to sort out sometimes." "Chicken Shack" as the new "Burger King"?

Those who take a trademark course in law school usually are exposed to the Burger King case, relating to the first users of the Burger King trademark (in Mattoon, Illinois). The Mattoon users got to retain rights to Burger King mark around Mattoon, and the national chain elsewhere.

Now, there is a related fast food issue coming up with "Chicken Shack," with the owners of "Shake Shack" moving in the chicken direction, and seeking a mark in "chicken shack," even though there are prior users in the Detroit area.
The story is covered by Crain's in the post Shake Shack seeks patent on use of metro Detroit Chicken Shack's name

The looming trademark fight has a "big guy vs. little guy" theme, which relates to some of the issues presently facing
Congress in dealing with patent reform. From Crain's:

If the trademark name battle did come to Chicken Shack's own market, it may not be a question of legal standing as much as financial stamina, said Kenneth Dalto, owner of Farmington Hills-based Kenneth J. Dalto & Associates and a consultant in several industries including restaurants.

"Shake Shack did an IPO not even six months ago and they are sitting on some money right now," he said. "It could hire a very powerful New York law firm if it's intent on the brand, and Chicken Shack is a good family company, but maybe it doesn't compete on that level.

"If it does get into litigation, right and wrong is hard to sort out sometimes. You're still able to get the other company's mind off of running its business and even if you lose it's still a two-year battle."

From the 2009 IPBiz post
Demise of the (anti-)Doughnut campaign: a parable of patent reform?

This little story evokes themes in the story of patent reform, although the patent reform saga has added complexity. In patent reform, the big doughnut sellers (eg, IBM, Cisco) are complaining about the little doughnut sellers ("trolls") and are trying to implement "reform" to favor the big doughnut sellers, rather than to get rid of the doughnuts. The popular press would have the public believe that the little doughnut sellers are the only ones selling doughnuts, and that "reform" will get rid of the doughnuts. Anybody who actually advocated getting rid of the doughnuts would meet the same fate as Dr. Newsom, likely from doughnut selling lawyers. Furthermore, the position of the big doughnut sellers would do significant harm to smaller vendors, who aren't selling doughnuts at all.

See also IPBiz post: Lerner says patent reform is "cold war"; IPBiz says "doughnuts!"

***As a headsup to trademark students, the original owners of the Mattoon Burger King sold out in 2015.
See Owners Of “Original” Burger King Sell Restaurant After Almost 60 Years In Business


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