Intellectual Property Law

Restaurant Holding Company Chow Food Sues Over Seattle's New Chao-Bistro Bar

By Michael Atkins

Local tongues are wagging over this one — Chow Food Management Services LLC is suing Yamashiro’s, LLC, d/b/a Chao-Bistro Bar. The suit, filed Sept. 23 in King County Superior Court, alleges that Capitol Hill’s newly-opened Chao-Bistro Bar infringes Chow Food’s state registration for CHOW.

I’m a great fan of the Chow Food’s neighborhood restaurants: 5 Spot, Atlas Foods, Endolyne Joe’s, and The High Life. Indeed, my wife and I are a fixture at one of these restaurants on the weekends. (Can you guess which one?)

Though my stomach is predisposed toward the plaintiff, I’ve got my doubts about its claims. First, does it have trademark use? As far as I know, Chow Food is a restaurant holding company that does business in the name of its four restaurants. There is no “Chow Food” restaurant. The company alleges it identifies itself to the public in radio and print ads, on its restaurants’ gift certificates, and on its Web sites. However, being in the business of owning restaurants doesn’t strike me as being the same as providing restaurant services to end-user consumers.

Second, protection for CHOW as a trademark for a company that’s in the food business at best would seem to be thin. In my view, it’s a descriptive mark that will need proof of secondary meaning before the court will afford it any protection. The Slog, for instance, uses “Chow” as the heading for its posts about food. Indeed, the Slog’s post about this dispute is tagged as “Chow.” Presumably, both the Slog and the plaintiff adopted this moniker to indicate they have something to do with food.

Finally, even if the court finds the mark is protectable, is consumer confusion likely? The dominant part of both marks sounds the same, but they arguably look different, have different meanings, and leave the consumer with distinct impressions. And to the extent similarities exist, I think it’s because both companies are playing on the association with “chow” as slang for comfort food. (I’ll grant that both parties at least indirectly compete with each other and are likely to use the same means to advertise their services. However, in my opinion those factors won’t be enough to carry the day.)

While I’ll enthusiastically vote for Chow Food with my wallet, if I were the judge I wouldn’t vote for it on its trademark claims. Would you?

See additional coverage at the Capitol Hill Seattle Blog here and here.

Full post as published by Seattle Trademark Lawyer on September 28, 2009 (boomark / email).