I’ll Take a Pepperoni Pizza, but Hold the IP

On February 19, 2013, in Trademarks, by Brian A. Hall

UnIP (UnIntellectual Property): Trade Dress for Restaurant Design and Menu

The United States District Court for the Eastern District of Michigan has denied Plaintiff’s Motion for Partial Summary Judgment as it relates to its claim for trade dress infringement.  This lawsuit stems from Happy’s Pizza suing Papa’s Pizza, which was run by a former investor of Happy’s Pizza.  Happy’s Pizza’s primary claim is that Papa’s Pizza copied the design of its restaurants and used Happy’s expansive menu.  In particular, Happy’s Pizza claims the following “unique decor protocols” constitute its trade dress:

(1) Granite countertops and tabletops
(2) Ceramic tiled walls and faux-Venetian plaster finished walls
(3) Extensive neon lighting
(4) Ceramic floors
(5) Large back-lit menu with faux-Venetian plaster walls
(6) Large, black industrial-style rugs
(7) Back-lit pictures of menu items
(8) Stainless steel shelving units behind the service counter
(9) Stacks of pre-folded pizza boxes and large coin-operated candy and bubble gum dispensers
The Court quickly tossed (pun intended) Happy’s Pizza’s attempt at partial summary judgment and found that Happy’s Pizza failed to establish both distinctiveness and lack of functionality as it relates to its trade dress claims.  It went on to recognize that, with regard to the menu and its inclusion of such items as “Perch and Shrimp Combo”, “Happy’s is certainly not the first fast food restaurant to offer such menu items.”  Thus, it held that Happy’s failed to provide enough evidence to warrant a finding of partial summary judgment.
So what is next?  Happy’s Pizza appears to face an uphill battle of gathering enough evidence to establish both distinctiveness and lack of functionality for these trade dress claims.  I can not disagree with Judge Battani’s ruling, especially having appeared before her in the past.  As an aside, I live in Michigan and could not tell you anything that strikes me as being distinctive enough to warrant protection.  Admittedly, I order delivery pizza more than I go to an actual pizza restaurant.  Nonetheless, the list of restaurant items above appear to be what I would traditionally associate with most pizza joints.
Happy’s Pizza Franchise, LLC v. Papa’s Pizza, Inc., 10-15174, 2013 WL 308728 (E.D. Mich. Jan. 25, 2013).



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