Wolfgang Puck Battles Elon Musk's Brother Over Trademark Rights For 'The Kitchen' In Restaurant Industry

from the really? dept

Tue, Mar 7th 2017 5:39pm — Timothy Geigner

Update: The original story incorrectly suggested that the USPTO had allowed a trademark on "the Kitchen" when that's not the case. We've edited the article to correct that impression, and apologize for the error.

Generic terms that are allowed trademark protection are the bane of those that still believe trademark law serves a useful function. For the law to work as intended, to protect the public's ability to know what they're buying and from whom they are buying it, trademarks need to be both unique and identifying.

Take one current trademark dispute, for instance, which happily includes such big names as Wolfgang Puck and the brother of Elon Musk, Kimbal Musk. Those two are currently battling over whether or not the term "the kitchen" ought to be trademarked for the restaurant industry. Puck is opening new digs in Chicago with the name "The Kitchen by Wolfgang Puck." Musk is one of the founders of The Kitchen Cafe out of Colorado. Musk filed a lawsuit against Puck in Colorado over the trademark issue, with Puck's lawyers filing a motion to dismiss while also filing suit in Illinois to have the Chicago area be the venue for the litigation.

The Colorado complaint filed by Musk's company makes the following claim.

Puck's "use of The Kitchen immediately caused confusion in the restaurant industry and marketplace," according to the Colorado compliant, which The Kitchen Cafe filed against a different Puck entity, Wolfgang Puck Licensing.

The claim is fairly laughable for any number of reasons. There is the generic nature of the term in the restaurant industry, the fact that the term does nothing to identify the source of the restaurant ownership, and, most importantly, the wide swath of restaurants that incorporate the term into their names. And that's the reason for Puck's desire to move the venue to Chicago. Puck's lawyer, Steve Mick, explains it nicely.

Both parties have restaurants in Chicago, Mick said. "And we like the fact that within a mile radius of The Kitchen's location in Chicago, there are five or six other restaurants using the phrase 'kitchen.'"

In River North, there's Lyfe Kitchen, Travelle Kitchen + Bar and Doc B's Fresh Kitchen, according to the Illinois complaint. One North Kitchen & Bar is also nearby in the Loop.

"That just sort of underscores our whole point," Mick said. "They don't get to elbow out everybody."

And the fact that they haven't even tried is going to be a problem in the suit. If Puck's restaurants are infringing on Musk's trademarks, why aren't all of these other, longer-standing restaurants likewise infringing? The attorney for The Kitchen Cafe has an answer for this, but it's not a good answer.

"The Kitchen has no issue with descriptive uses of 'kitchen' that do not cause confusion, which is the case in these other instances," said Timothy Getzoff, the attorney representing The Kitchen Cafe. "In contrast, Puck's competing restaurant uses the exact same name, The Kitchen, which already has caused confusion in the market."

Which means that Musk's company essentially filed a trademark suit over the word "the." That word is the hangup here, even as the overtly generic term "kitchen" is utilized all over the restaurant industry. If Musk's suit isn't a loser, then I don't know what would be.

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Filed Under: elon musk, kimbal musk, kitchen, restaurants, trademark, wolfgang puck

26 Comments

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Anonymous Anonymous Coward (profile), 7 Mar 2017 @ 6:18pm

Ego
I am not confused over "The Kitchen by Wolfgang Puck" and "The Kitchen Cafe" in another state. The term 'kitchen', as in I'll meet you in the kitchen, exists in every restaurant in the world, and in most homes (some might be kitchenettes). So how much of these disputes have more to do with ego than actual confusion by potential customers?

I know Wolfgang has a big one, now we know that Kimbal Musk also has a big one. Is this a contest to prove whose ego is bigger, or an attempt at gaining some money, that might hurt a competitor, or is it just about control?

Control seems to be a most likely motivator in many IP related disputes. I don't think the system was supposed to include control (except in what were supposed to be very limited times (a concept lost to a large degree in 1976)).
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Anonymous Coward, 7 Mar 2017 @ 7:10pm

it's all in the location
If someone confuses Chicago with Colorado, they shouldn't be left unattended.
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TechDescartes (profile), 7 Mar 2017 @ 7:23pm

USPTO: "I didn't do it!"

When the USPTO instead allows for laughably broad terms or words to be trademarked, it steals from trademark proponents the argument of utility.

The USPTO isn't at fault here. In fact, TKC applied to register THE KITCHEN as a trademark for restaurant services and the Examining Attorney refused. TKC appealed and the Trademark Trial & Appeal Board affirmed the refusal. Don't blame the USPTO. This time.

During that proceeding, TKC argued that there was no likelihood of confusion between THE KITCHEN and DA KITCHEN:

Applicant respectfully argues that consumer confusion is unlikely because: (1) the Cited Mark is weak and entitled to minimal protection due to a crowded field of KITCHEN-formative marks used in connection with restaurant services; and (2) while the marks share the term “kitchen,” the inclusion of “da” in the Cited Mark gives it a different overall commercial impression from Applicant’s Mark, and consumers – who are already accustomed to encountering and distinguishing between many KITCHEN-formative marks – will likewise be able to distinguish between THE KITCHEN and DA KITCHEN.

Sounds exactly like Wolfgang Puck's argument. Ouch.
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JoeCool (profile), 7 Mar 2017 @ 7:49pm

Re: Ego
No, it's none of those. It's about giving otherwise unemployed (and often unemployable) lawyers a job. The biggest problem society faces right now are lawyers CREATING jobs for other lawyers where none are needed.
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Roger Strong (profile), 7 Mar 2017 @ 8:08pm

Re: USPTO: "I didn't do it!"
That's all very nice, waiter, but I just want the #$@&%!* meal I ordered 45 minutes ago.
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TechDescartes (profile), 7 Mar 2017 @ 8:16pm

Re: Re: USPTO: "I didn't do it!"
If you click that little red flag next to your comment, you'll get your just desserts.
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Anonymous Coward, 7 Mar 2017 @ 8:33pm

Re: Re: USPTO: "I didn't do it!"
Sorry, but the delivery distance is 1800 miles
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TechDescartes (profile), 7 Mar 2017 @ 8:39pm

Re: Re: Re: USPTO: "I didn't do it!"
Try clicking it again. You'll get what you've got coming. Even in Canada.
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Mononymous Tim (profile), 7 Mar 2017 @ 8:49pm

The only thing confusing is the idiocracy of it all, including the USPTO
My question for anyone engaged in any such stupidity as this: Just how stupid do you think your potential customers are?
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orbitalinsertion (profile), 7 Mar 2017 @ 10:32pm

Re: The only thing confusing is the idiocracy of it all, including the USPTO
I think a lot of businesses, products, marketing, and advertising are exactly predicated on the assumption that potential customers are morons.
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orbitalinsertion (profile), 7 Mar 2017 @ 10:34pm

Musk should just get back in The Kitchen and make me a damn sammich,
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PaulT (profile), 8 Mar 2017 @ 12:03am

"In contrast, Puck's competing restaurant uses the exact same name, The Kitchen, which already has caused confusion in the market."

Well, might I suggest that your pretentious asses don't use a phrase for your trademark that can so easily be confused because it's used literally everywhere? If you put more imagination into your branding, you won't have customers confusing it with other uses of a common dictionary word.

Just out of interest, I decided to Google "The Kitchen". From my results, I get a Food Network show and a performance space in New York before I get to Musk's venture. I also get 3 other restaurants using the same phrase (but no Puck restaurant on the first page of searches, presumably because it's not open yet). Is Musk suing them? Probably not, only the "big name" one (i.e. the rich ones, as usual).
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Mike Masnick (profile), 8 Mar 2017 @ 12:12am

Re: USPTO: "I didn't do it!"
Hmm. Yes. I've edited the post to correct this, and reminded Tim one of our core tenets here when writing about a federal lawsuit: which is *always* go to the source material rather than just relying on the articles about it.

I've also added the initial complaint to the post, which suggests that there's a bit more to this case than the summary above.

This post is not one of our better efforts, and I'll do my best to make sure we catch these things in the editing process going forward. Sorry about that.
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David, 8 Mar 2017 @ 12:56am

I'd like to call Kimbal Musk something
Unfortunately, Fyodor Dostoyevsky already has copyright on this descriptive characterization of the form "The ...".
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David, 8 Mar 2017 @ 1:03am

To make it easier:
I wasn't going to call him a Brother Karamasov.
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Eldakka (profile), 8 Mar 2017 @ 4:20am

Re: it's all in the location
But they both start with 'C'!
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Richard (profile), 8 Mar 2017 @ 4:48am

Names
I can't take Elon Musk seriously. He sounds too much like a character from the Hitchhiker's Guide to the Galaxy. Likewise Kimbal Musk and Wolfgang Puck. Surely these are all fictional.

However one person who might have a say in the current dispute would be Tom Kitchin. (https://thekitchin.com/about/tom-kitchin?gclid=COfggJ74xtICFde6GwodiaIJqw)

Being a chef and actually being called Kitchin surely should have given him all the trump cards - pity about the pesky "i".
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Anonymous Coward, 8 Mar 2017 @ 5:10am

Fixed!
Those two are currently battling over whether or not the term "I'm an über-asshat with a funny name" ought to be trademarked for the restaurant industry.
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Michael, 8 Mar 2017 @ 5:24am

Re: Ego
I'm not confused by the two restaurant called "The Kitchen" that are about 15 miles apart from each other here in CT.

I am a little confused by "The Kitchen Cabinet Outlet", but mostly because I am not sure if they sell cabinets or electrical supplies.
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The Wanderer (profile), 8 Mar 2017 @ 6:04am

At first glance, I couldn't even see where they were drawing a similarity from.

It took me a moment to figure out that they're reading the name of the restaurant as (The Kitchen) Cafe, whereas I was reading it as The (Kitchen Cafe).

Since the other restaurant doesn't include the phrase "Kitchen Cafe", it wouldn't even have occurred to me to think of it as being possibly connected, much less confusingly similar.
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Dave (profile), 8 Mar 2017 @ 6:43am

Can't believe they're fighting over this name
Who wants to eat in "The Kitchen"? That's for the hired help. I want to eat in "The Dining Room" or at "The Banquet". The kitchen is for lower classes and bums looking for a hand out. Wise up fellas and fight over something more original or at least worthwhile.
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Ryunosuke (profile), 8 Mar 2017 @ 7:19am

"The Kitchen by Wolfgang Puck" is a rather specific name, mainly because of "Wolfgang Puck". It is a kitchen, run by Wolfgang Puck.

The Kitchen Cafe, however, is a lot more ambiguous, but still not unheard of. He could have gone with "The Kimbal Cafe", or something that is not like Puck's establishment.
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Anonymous Coward, 8 Mar 2017 @ 11:27am

Re: Re: The only thing confusing is the idiocracy of it all, including the USPTO
True, just look at most marketing. Sadly, if you treat them like that enough, they'll start to believe it, and you have the Idiocracy we're making a beeline for.
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Anonymous Coward, 8 Mar 2017 @ 1:14pm

I am going to make a bundle...
I am going to trademark 'The Restaurant' in my new restaurant named 'The Restaurant De Pierre'. Now no one can use the term 'The Restaurant' or even just 'Restaurant' because of all the confusion it would cause. If they do they are going to have to pay me... hahahahahaha to the bank.
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I Love Capitalism, 8 Mar 2017 @ 10:17pm

Re: The only thing confusing is the idiocracy of it all, including the USPTO

Just how stupid do you think your potential customers are?

The stupider, the better. Much easier to separate to fool from his money.
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Anonymous Coward, 8 Mar 2017 @ 10:20pm

Re: I am going to make a bundle...
Just be aware that I'm trademarking "The Menu" and proceed accordingly.
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