-Martha Engel, Attorney

Even in the age of the Internet, the geographic use of a trademark is an important consideration in determining whether your mark is likely to confuse consumers as to the source of your goods or services. Geographic considerations are particularly important for bars, restaurants, breweries, wineries, and distilleries – especially as they enter new markets.

Case in point: There is a bar downtown Minneapolis that has been open since 2012 called The Pourhouse at Fifth and Hennepin, which many refer to simply as “Pourhouse”.

ThePourhouseAn article in the Minneapolis-St. Paul Business Journal mentioned that a lease was signed for a new bar and restaurant downtown called Old Town Pour House at Seventh and Hennepin.  (The article originally said it was at Sixth and Hennepin.)  Old Town Pour House has three locations in Illinois and Maryland, and this would be their first location in Minnesota.  Given the signage for the Old Town Pour House as shown below, the dominant portion of the mark appears to be POUR HOUSE.   And this restaurant will be a stone’s throw away from the other earlier location.

oldtownpourhouse

 

interiorpourhouse

The article highlighted the fact that confusion between Old Town Pour House and The Pourhouse might be possible:

That site’s just two blocks from The Pourhouse, the locally owned nightclub that’s expanding [in its current location], so if you’re meeting friends at one of them make sure to get your plans straight.

So do you think this might be a problem in the same city?  Maybe not as problematic if Old Town Pour House had opened in St. Paul, or the West End, or Eden Prairie, but still potential for consumers to believe that the two locations emanate from the same source.  What do you think about when they’re on the same street?

Now you can imagine that an after work happy hour text, a Tinder message, or a comment after a Twins game to “meet me at Pourhouse” could potentially lead to some missed connections.  Or maybe someone says “I didn’t like the burger the other night I had at  Pour House downtown” – which could damage their reputation when they both have burgers on the menu.

When opening a restaurant, a bar, a brewery, or a distillery – or entering a new market with one – what steps should you take to lower your risk?

  • Do a search of both the federal trademark register and also the state business records.  Even if you have a federal trademark registration, check again.  Here, Old Town Pour House has a federal trademark registration for its logo – but it was filed after The Pourhouse was established in Minneapolis.
  • Conduct a quick internet search for your mark, and each of the words on their own, to see if there is any unregistered use, colloquial use, or newspaper articles for a similar mark.
  • If something of interest comes up from either of these searches, that doesn’t necessarily mean “no.”  Figure out how you can avoid actual confusion by consumers – a modification to your logo, some clever advertising efforts to distinguish yourself (maybe here to emphasize Old Town), create a different consumer experience, or consider the earlier use when leasing property and select a location that reduces potential for consumer confusion.

Do you think we are going to see some action taken here with Pourhouse like we saw last year with Lulu’s at the State Fair?  Or do you think as Old Town Pour House tweeted at me the other day “We’re all friends here! Craft beer needs less disputes, and more drinking in our eyes” and “far from a trademark dispute”?

  • James Mahoney

    I wonder how long “we’re all friends here” would last if the timeline were reversed and Old Town was the established business and The Pourhouse was the newcomer? Seems to me to be a pretty straightforward goof on the part of Old Town, if we’re giving them the benefit of the doubt, and a pretty straightforward poaching if we’re not giving them that benefit.

    • Lee J

      Poaching is untrue/unfair, seeing as there is a federal trademark on the name.

  • Martha Engel

    James, thanks for your always insightful comments! I agree that if the shoe were on the other foot, they probably wouldn’t be so friendly.

  • Martha Engel

    As an update, it looks like Old Town Pour House recognized the concerns and will be opening up a restaurant in the leased location under a much different name.

    http://www.bizjournals.com/twincities/news/2015/09/18/mayo-clinic-squares-old-town-pour-house-scratched.html?ana=e_twin_rdup&s=newsletter&ed=2015-09-18&u=718eJxXLYOq4Zkj67T688A0b01136b&t=1442585216