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Celebrity Trademark Battle: “The Kitchen”

Posted in Genericide, Infringement, Mixed Bag of Nuts, Trademarks

World-famous chef Wolfgang Puck recently became embroiled in a trademark battle with Elon Musk’s brother, Kimbal Musk, a venture capitalist and entrepreneur who owns The Kitchen Cafe, a family of restaurants in Boulder, Fort Collins, Denver, Glendale, and Chicago. Puck has opened new restaurants with the names “The Kitchen by Wolfgang Puck” and “The Kitchen Counter by Wolfgang Puck.”

Musk’s company The Kitchen Cafe, LLC (“TKC”) filed a trademark infringement suit in Illinois federal court against Wolfgang Puck Licensing LLC (“Puck”). TKC’s complaint alleged Puck’s restaurant names infringed TKC’s common law trademark “THE KITCHEN.” Puck filed a motion to dismiss and also filed a separate declaratory judgment suit in federal court in the Northern District of Illinois.

In the declaratory judgment complaint, Puck argued that “the phrase ‘the Kitchen’ is fundamentally incapable of protection as a standalone trademark or service mark or as an element of a trademark or service mark because it is generic, or, at best, merely descriptive of such services, and that TKC’s assertion is legally untenable and factually absurd.”

Puck further argued that TKC has not acquired distinctiveness in “THE KITCHEN” as there are “hundreds of other restaurants which use ‘kitchen’ in their names.” Puck emphasized several such examples in the Chicago area, including the Lyfe Kitchen restaurant, which is a block and a half from TKC, the Travelle Kitchen, which is two blocks away, and the One North Kitchen & Bar, which is nine blocks away.

I think it will be a rocky road ahead for TKC to show that the claimed “THE KITCHEN” mark is protectable. Even if it makes it past the genericness hurdle, at the very least it’s descriptive, and it will be difficult to show acquired distinctiveness for several reasons, including the multiple “Kitchen” restaurants in close proximity. What do you think?

Out of curiosity, I also looked around the USPTO for registrations with the word “KITCHEN” that identify restaurant services. It appears the USPTO routinely requires a disclaimer of “KITCHEN” as an unregistrable portion of marks in Class 43 for restaurant services, such as RED RIVER KITCHEN, LIVING KITCHEN, and SECRET KITCHEN. One recent Office Action for the mark SOUTHWEST KITCHEN required a disclaimer of “KITCHEN” and specifically concluded that the word “KITCHEN” is generic for restaurant services. The same conclusion was reached by another Office Action for the mark WOODBERRY KITCHEN.