Recently, Darden Concepts, Inc. and GMRI. Inc. filed a trademark infringement suit against the Briad Restaurant Group companies in the Southern California U.S. District Court (Docket No. 10-cv-2077 , S.D. Cal. Oct. 6, 2010). Most consumers are familiar with the brands of the three restaurants involved; Darden owns the Olive Garden and Red Lobster chains (among others), while Briad owns the San Diego franchise for T.G.I. Friday’s restaurants. The issue is the alleged infringement of Darden’s well-known Never Ending Pasta Bowl mark, which is federally registered for classes 30 (Cooked food products) and 43 (Restaurant services) and used in Olive Garden restaurants. T.G.I. Friday’s franchisee is alleged to infringe this mark by using the phrase “Never Ending Shrimp” in advertising beginning last August. Moreover, Darden claims the extension of the mark to “shrimp” alleging its Red Lobster restaurants have regularly used the promotion slogan “all-you-can-eat shrimp.” The case is still in the early stages and the defendant has yet to answer the complaint, but several questions arise in our minds:
- Is there a likelihood of confusion among patrons between “pasta” and “shrimp”?
- Does the public make the connection between Olive Garden and Red Lobster?
- Does the public uniquely associate “Never Ending …” with Darden’s properties, or is it simply a descriptive phrase?
- What recoverable profits can be directly attributed to the infringement, assuming Briad was to be found liable?
In our experience, these types of trademark infringement cases require a thorough analysis of the variety of factors that drive consumers to each restaurant, in order to adequately apportion the impact of the secondary mark in its proper context. A multi-variate analysis, minding the factor checklists that have been developed in the case law, in conjunction with a current “contributory assets” valuation are most likely going to be necessary.
We shall continue to monitor this case, located in our own “backyard.”
