We’re actually not covering the trademark fair issue we planned to cover today because we just caught wind of a lulu of a trademark infringement case filed on Friday of last week against a brand new 2014 fair vendor: Lulu’s Public House.
This particular Lulu has been getting some nice press on their food offerings and on sporting the fair’s first rooftop patio, and in doing so, has gained the attention of another Lulu, and not the lemon, or the “wanna be” bed & breakfast, much less any of these federally-registered or published, peacefully-coexisting, apparently-unrelated Lulu’s eating establishments:
No, none other than LuLu’s Food Market & Deli Inc., d/b/a LuLu’s Market & Deli filed suit against The Firefly Group Inc., d/b/a Lulu’s Public House August 22, 2014 — the second day into the 2014 Minnesota State Fair, and at least two months after Lulu’s Public House was announced as a new 2014 fair vendor, to be located in the newly remodeled West End.
The Pioneer Press coverage of the story highlights the instances of confusion alleged in the complaint: “Lulu’s Market & Deli has been contacted by several well-wishers and job-seekers who confused it for the Lulu’s at the state fair.” It also focuses on similar menu items:
“In addition to the shared name, the complaint points out that both restaurants offer ‘Jucy Lucy’-style menu items — Lulu’s Public House sells a breakfast sandwich called the ‘Breakfast Juicy LuLu,’ while Lulu’s Market & Deli sells a cheeseburger called the ‘Fair Lucy’ — and taco menu items — Lulu’s Public House sells a prime rib taco, while Lulu’s Market & Deli sells a fish taco. The complaint says this too is likely to cause confusion among consumers.”
Notwithstanding the potential for confusion, given the timing and the delay in filing suit and failure to seek emergency injunctive relief before the opening day of the fair will likely weigh against the court taking action in time to affect any name and signage changes, at least for this year at the fair. Having said that, this case was filed in Ramsey County Minnesota State Court, not the typical federal court where most trademark infringement actions are heard, so we’ll have to wait and see what happens — but I’ll go out on a limb and predict no name changes, this year anyway, given the very heavy burden when seeking emergency injunctive relief.
Whether a name change is required between now and next year likely will depend on how the evidence develops over the course of the next year, and whether LuLu’s Public House has the stamina to defend itself, any predictions on either?
I’m so intrigued by this case, Lulu’s Market & Deli isn’t at the fair, but for more than two years the home page of their website features a jucy lucy burger called “The Fair” — honestly, what are the odds they find themselves in the present pickle of a trademark infringement action against a vendor located only at the fair?
Bottom line: Do you think the addition of “Public House” to Lulu’s at the Minnesota State Fair is enough to distinguish it from Lulu’s Market & Deli on Selby in St. Paul?