Angry Couple Using Trademark To Bully Oyster Bar Over Menu Item Names

from the aw-shucks dept

Thu, Sep 10th 2015 11:14pm — Timothy Geigner

Trademark is for a lot of things (not it isn't), but one of the things it is definitely not for is for jilted ex-business contacts to fight with 3rd parties because they are butt-hurt about not being able to pay the rent. And if that hasn't confused you enough, come see what's going on in Louisiana, where a couple that had purchased a restaurant and then, failing to pay the rent on time to the original owners, decided that they would go trademark-crazy on the new ownership that replaced them.

Mark Fayard and Susan Martisen purchased Metairie oyster icon Bozo's and its trademarks in 2008 from elderly Chris "Bozo" Vodanovich, but after years of allegedly paying late rent on the property, the Vodanovich family successfully ousted them from the building in 2013 and the restaurant was no more. That's when restaurateur Ed McIntyre swooped in and bought the actual property at 3117 21st St., revamping the restaurant and resurrecting beloved menu items and the legendary oyster bar, though under the Mr. Ed's Oyster Bar & Fish House name. McIntyre had the blessings of Chris Bozo Vodanovich—a real passing of the reigns— who often visited Mr. Ed's until he passed away at age 86 in late 2014.

Are we all clear? Fayard and Martisen bought Bozo's restaurant and trademarks, but not the actual building, for which they had to pay the Vodanovich's rent, and then promptly failed to pay the rent on time, leading to their eviction. It's important to note that the restaurant closed down completely at that point. As in, it didn't engage in commerce any longer. It ceased to be. It became an ex-restaurant. Which, of course, means the Bozo's trademarks were no longer in use.

Not that this stopped Fayard and Martisen from sending a cease and desist letter demanding that Mr. Ed's stop using a bunch of the trademarks they're still claiming.

They sent a cease-and-desist letter demanding that the restaurant stop saying it's been "Shucking Here Since 1979" or calling itself the "Oldest Standup Oyster Bar in Metairie." The letter also demanded that Mr. Ed's stop offering dishes with "Mr. Chris" in their names.

The duo are now suing Mr. Ed's for allegedly not complying with the cease and desist, though the restaurant has since stopped describing itself as having the 'oldest standup oyster bar in Metairie.' As for the menu items, McIntyre argues that the two dishes known as "Mr. Chris Gumbo chicken and andouille gumbo" and "Mr. Chris homemade hamburger steak" are both an "homage to a man he called a friend for four decades" and not trademark infringement.

So, again, we have to people whose restaurant was shut down completely, suing the owner of a new restaurant for trademark violations on phrases and menu items they're no longer using. And it's apparently gotten petty enough that part of the dispute is over menu items harkening back to the man who owned the original restaurant, which is no longer in business. Sometimes I'm not really sure what trademark is actually for any longer, but I am quite sure it isn't this.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: bozo, chris vodanovich, ed mcintyre, louisiana, mark fayard, menu, metairie, oysters, susan martisen, trademark
Companies: bozo's, ed's oyster bar & fish house

26 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Killercool (profile), 10 Sep 2015 @ 11:43pm

The late restaurant...
It wasn't closed. It was... Sleeping! Yes, sleeping!

The doors were nailed shut because it was such a deep sleeper...
[ link to this | view in chronology ]
- deadparrot, 11 Sep 2015 @ 1:18am
  
  Re: The late restaurant...
  Itwaspiningforthefjords.Myspacebardoesn'twork.Drat!
  [ link to this | view in chronology ]
  - Anonymous Coward, 14 Sep 2015 @ 4:33am
    
    Re: Re: The late restaurant...
    Fnords? Fnools?
    [ link to this | view in chronology ]
- Anonymous Coward, 11 Sep 2015 @ 6:49am
  
  Re: The late restaurant...
  It's pining for the Fjords! (the best Oysters come from Fjords)
  [ link to this | view in chronology ]
Anonymous Coward, 11 Sep 2015 @ 1:03am

It's just jealousy...
Obviously the IP was so weak that they couldn't make the restaurant work based on that alone.

So, when someone else stepped up to the plate and made it work, it's because of the IP he "stole"?

No. They're just jealous that the new guy can actually run a restaurant and make a profit! And they want a piece of that pie!
[ link to this | view in chronology ]
Mahée Ferlini, 11 Sep 2015 @ 1:03am

New name
Sounds like success envy. They should probably just do the easiest thing and come up with an all new name and menu. They can use it as a fresh start promotion.
[ link to this | view in chronology ]
- JoeCool (profile), 11 Sep 2015 @ 10:43am
  
  Re: New name
  How about "The entrée formerly known as Mr. Chris Gumbo chicken"?
  [ link to this | view in chronology ]
That Anonymous Coward (profile), 11 Sep 2015 @ 1:19am

If only they had paid their rent with the voracity they try to enforce dead trademarks.
[ link to this | view in chronology ]
- El Mariachi (profile), 11 Sep 2015 @ 4:34pm
  
  Re:
  How does one voraciously pay rent?
  [ link to this | view in chronology ]
scotts13 (profile), 11 Sep 2015 @ 4:17am

I don't know - wouldn't this depend on the terms of the contract under which the trademarks were sold? Since they were separate from the physical location, failure to pay rent may not have invalidated that sale. Perhaps the former restauranteurs plan to use the trademarks when they re-open in another location.

Certainly company names and trademarks have been sold and re-used before.
[ link to this | view in chronology ]
- radix (profile), 11 Sep 2015 @ 8:28am
  
  Re:
  Yes! I don't often disagree with the TD folks, but this may be a VERY legitimate use of Trademark law.
  
  Being evicted doesn't generally mean you forfeit all trademarks. Perhaps the marks were used as collateral in any bank loans (in which case the bank would have to file the IP lawsuit), or if the property owner filed a lien against those assets to recover back rent. But if this is a simple case of getting kicked out and, while looking for new funding, somebody else comes along and starts using your menu and marks, this could be exactly what Trademark law is intended for.
  
  As a consumer protection law, who wouldn't be confused by a "new" restaurant in the same location, claiming to be there for decades, serving the same menu? Mr. Ed's is fully and completely piggybacking on the name and reputation of Bozo's. If that's not a trademark violation, then you might as well get rid of the law altogether, because nothing else would be a violation, either.
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Sep 2015 @ 9:00am
    
    Re: Re:
    Other than the apostrophe and the s, I don't see any similarity between "Mr. Ed's" and "Bozo's".
    
    If he has a sale contract for the trademark that specifically includes "Mr. Chris", he might have a claim, but I would think that would need to be separately trademarked.
    [ link to this | view in chronology ]
    - radix (profile), 11 Sep 2015 @ 10:05am
      
      Re: Re: Re:
      But trademarks don't just cover the name of an establishment. If I opened a fast food joint this year named KwikFood but served Big Macs and used a logo referencing Golden Arches and "since 1940," how long do you think I would be in business?
      [ link to this | view in chronology ]
      - Michael, 11 Sep 2015 @ 11:03am
        
        Re: Re: Re: Re:
        Mr. McDowell might be upset...
        [ link to this | view in chronology ]
mcinsand, 11 Sep 2015 @ 6:19am

Ah... Mr. Ed's!
I'm too biased here to express any opinion besides the fact that Mr. Ed's is awesome! I'm hoping to make a trip later this year.
[ link to this | view in chronology ]
Name, 11 Sep 2015 @ 7:41am

Nononono, no, no! 'E's resting!
"It's important to note that the restaurant closed down completely at that point. As in, it didn't engage in commerce any longer. It ceased to be. It became an ex-restaurt.

Monty Python's Dead Parot sketch comes to mind:

https://web.archive.org/web/20121012135336/http://www.mtholyoke.edu/~ebarnes/python/dead-parrot .htm

I was going to change the words around to reflect the situation,,,,but I haven't had my coffee yet.
[ link to this | view in chronology ]
- Name, 11 Sep 2015 @ 7:43am
  
  Re: Nononono, no, no! 'E's resting!
  Typos. Need my coffee.
  [ link to this | view in chronology ]
Shy Writer, 11 Sep 2015 @ 9:14am

Wrong use of the word "to"
In the trademark article on the oyster bar you used "to" instead of "two" in the last sentence.

I.e.; "So, again, we have to people whose restaurant was shut down completely, suing the owner of a new restaurant for trademark violations on phrases and menu items they're no longer using."

Regards,
Shy
[ link to this | view in chronology ]
- Anonymous Coward, 11 Sep 2015 @ 10:50am
  
  Re: Wrong use of the word "to"
  Also needs a comma after not in the parentheses. e.g. (not, it isn't)
  [ link to this | view in chronology ]
  - Anonymous Coward, 11 Sep 2015 @ 11:42am
    
    Re: Re: Wrong use of the word "to"
    Comma-unist.
    [ link to this | view in chronology ]
Anonymous Coward, 11 Sep 2015 @ 9:38am

...It's important to note that the restaurant closed down completely at that point. As in, it didn't engage in commerce any longer. It ceased to be. It became an ex-restaurant. Which, of course, means the Bozo's trademarks were no longer in use...

There are regulations in my area that as long as a business owner pays for and maintains their license(s) they have rights to whatever trademarks that business had, even if the business is not operating. While common with franchises even a single business gets this consideration. This usually occurs when a business loses it's lease and is looking for new quarters but has to vacate it's old location beforehand.

In this case were Fayard and Martisen maintaining their license(s) and actively looking for new quarters? If not then we have abandonment.
[ link to this | view in chronology ]
Michael, 11 Sep 2015 @ 9:52am

What's the point?

He's clearly going to be shut down for selling horse meat anyway.
[ link to this | view in chronology ]
- Michael, 11 Sep 2015 @ 9:53am
  
  Re:
  In case you didn't realize, this was a sarcastic comment. I'm pretty sure he sells oysters.
  [ link to this | view in chronology ]
  - JoeCool (profile), 11 Sep 2015 @ 10:48am
    
    Re: Re:
    Personally, I'd rather eat a horse. Not a big fan of oysters or the like.
    [ link to this | view in chronology ]
Mats Svensson, 11 Sep 2015 @ 11:43am

Sticky
Well that certainly is a whopper of a situation.

Hang on, there is someone at the door...
[ link to this | view in chronology ]
michael, 11 Sep 2015 @ 1:40pm

First sentence ...
"Trademark is for a lot of things (not it isn't), but one of the things it is definitely not for is for jilted ex-business contacts to fight with 3rd parties because they are butt-hurt about not being able to pay the rent."

This sentence is so packed with errors and nonsensical that I wonder if it's a result of round-tripping with an automatic translator.
[ link to this | view in chronology ]