–Susan Perera, Attorney
Last week Jim Hammerand at the Minneapolis/St. Paul Business Journal reported on locally based Buffalo Wild Wings (also known as “B-Dubs”) ending its lawsuit against Buffalo Wings & Rings, the suit had included claims of trademark and trade dress infringement.
It appears that under the terms of the settlement agreement, Buffalo Wings & Rings will continue to operate under the same name, however, it is restricted from using the WING TUESDAY trademark (owned by BWW), and the color yellow on its logo and restaurant décor.
Jim’s article notes concern as to whether BWW bit off more than it could chew by bringing a trademark infringement claim based on the BUFFALO WILD WINGS trademark. No mater how you come down on that analysis, BWW was successful in laying some fence posts around the use of the color yellow as part of its trademark and trade dress.
Anyone who has been to a BWW location is familiar with its use of yellow, you can’t miss it, its on its building interior and exterior as well as its advertising and logo. Notably, BWW had applied for a few color trademark registrations to cover the alternating black and yellow colors in connection with restaurant services in 2010, but subsequently abandoned those applications by not responding to an Office Action requiring evidence of acquired distinctiveness, or amendment to the Supplemental Register.
While it is unclear why BWW didn’t put forth evidence to support its color trademark at the time (I found multiple uses of the alternating black and yellow online, including building awnings, interior décor, and food containers). In any event, it appears that BWW may now be reviving its interest in protecting the look and feel of its restaurants as a manner of distinguishing itself from its competitors.