Restaurants Fight Over Name “Frenchy’s” in MDFL
Frenchy’s Corporate, Inc., an operator of seafood restaurants in Clearwater Beach, filed a trademark lawsuit in the Middle District of Florida against Frenchy’s Pizzeria & Tavern, a pizzeria located less than an hour away. Frenchy’s Corporate claims the right to the unregistered trademark “FRENCHY’STM”. Frenchy’s Corporate does not have a federal trademark registered to protect “FRENCHY’STM”. They are seeking redress under Section 43(a) of the Lanham Act. The Lanham Act allows for parties to sue for trademark infringement against a person or company when they use a phrase in commerce that might confuse consumers into believing it has a false origin. To sue under the Lanham Act, a party need not have a registered trademark.
Frenchy’s Corporate has been in business since 1981. They have opened four more restaurants since their initial launch. All their restaurants use the name “Frenchy’s”. This is the basis for Frenchy’s Corporate’s argument that they have made “exclusive and continuous” use of the mark since 1981 and have earned “substantial good will” throughout Florida and the United States.
The defendant, Frenchy’s Pizzeria & Tavern was set to open on February 1, 2018, 28 miles away from Clearwater Beach. Frenchy’s Pizzeria named their restaurant after Andrea French, a co-owner of the restaurant. Frenchy’s Corporate insists that the tavern purposely named its restaurant Frenchy’s to hopefully confuse consumers into belief of its association with Frenchy’s Corporation. Frenchy’s Corporate viewed this as an attempt to ride off its good will and good named established throughout the state.
Frenchy’s Corporate sent the Defendant a cease and desist letter prior to the grand opening, requesting to take down a website used to market their restaurant, “www.frenchyspizzeria.com”. After Frenchy’s Pizzeria did not comply, Frenchy’s Corporate got the website taken down through the hosting service and proceeded to file a lawsuit to assert the rights it believes it has to “FRENCHY’STM”.
The complaint was filed on February 21st, 2018. Although one of the co-defendants and co-owners, Mark Spier, told Tampa Bay Business Journal that they are justified in using the name “Frenchy’s”, they failed to file a response. On March 27th, 2018, the Clerk entered a Default Judgment against Frenchy’s Pizzaria. The Court enjoined Frenchy’s Pizzeria from using the “FRENCHY’STM” mark.
Since there was no responsive pleading filed by the defendant, in its order, the court acknowledged that “Frenchy’s Corporate has a valid and enforceable trademark in the name “Frenchy’s” in the restaurant goods and services sector.”
Although a Default Judgment was entered against Frenchy’s, this case brings up the question of whether a person’s name can be registered as a trademark. In the instant case, as noted above, one of the owners of Frenchy’s Pizzeria was Andrea French. Her company would have had a much stronger defense if she was using the name “French’s Pizzeria.” Because Frenchy’s Corporate can hang their argument on the fact that (1) “Frenchy’s” isn’t the Defendant’s personal name and (2) “Frenchy’s” is unique. The case is Frenchy’s Corporate, Inc. v. Frenchy’s Pizzeria & Tavern, Inc. et al (8:18-cv-00425), Florida Middle District Court.
Pollard PLLC is a law firm focused on competition law. The firm and its attorneys have extensive experience litigating unfair competition cases, including trademark, false advertising, non-compete, trade secret and antitrust matters. For more information, please contact their Florida office at 954-332-2380.