The owner of the popular Chickie and Pete’s (CP) restaurant chain, Pete Ciarrocchi, is on a tear trying to maintain his monopoly over the use of “crab fries,” a seasoned french fry product, which Philadelphia Magazine claims Ciarrocchi invented. Not so says a handful of restaurants in the Maryland eastern shore who have orchestrated a grass roots movement to save the crab fry complete with, of course, a Facebook page and blog. Some lawyers claim that local use of the term “Maryland Crab Fries” and “Crabby Fries” is not similar to CP’s mark, is not likely to cause confusion outside of CP’s market and CP’s mark is just too generic to deserve registration. Against this backdrop, CP is defending its trademark rights and has sued the parent organization of certain Maryland and North Carolina restaurants — New York J & P Pizza — alleging trademark infringement, unfair competition, trademark dilution and other causes of action.
If you’re a regular reader of our newsletter, you will understand that trademark owners have a legal duty to defend their trademarks. In the process, however, a trademark owner can lose its rights if the alleged infringer is able to prove in court that the mark is generic or, put another way, lacks distinctiveness. If every restaurant in Maryland and the eastern seaboard sold “crab fries”, for example, there would be nothing distinctive of CP’s use of the same phrase. We’re not experts on the use of the “crab fries” mark but typically in these situations, business considerations will prevail over legal right. CP has successfully defended its trademark for years by simply threatening to sue alleged infringers. It’s very expensive to defend a trademark infringement action. Lawyers must be hired, court costs paid, and someone has to foot the bill for the business disruption and distraction caused by the lawsuit. If you’re a small business owner, like many of the restaurants in Maryland’s shore areas, its hard to justify the expense and its far easier (and cheaper) to change the menu. Unless CP’s suit against New York J & P Pizza has a different bottom line equation — and it might — we predict a quick settlement.
— Adam G. Garson, Esq.