Using Different Brand Names on My Menu

We're thinking to open a restaurant based off of the best food in the industry. Our chef can taste a dish and recreate the exact same thing, only better. So as a marketing tactic we wanted to title everything on our menu based off of the original. For example:

Better than - Wolfgang Puck's™ Clam Chowder
Better than - Chin Chin's™ Chinese Chicken Salad

Is this allowed if I put a © or ™ symbol next to the company's name?

Obviously this would be without their consent.

We would like to use their name as a reference for our customers. Saying it's: better than X - where X is the reference point.

We are not actually coping the product, but making a superior product and giving our customers a reference point.

Quote:

---

Film5280;878366]We're thinking to open a restaurant based off of the best food in the industry. Our chef can taste a dish and recreate the exact same thing, only better. So as a marketing tactic we wanted to title everything on our menu based off of the original. For example:

Better than - Wolfgang Puck's™ Clam Chowder
Better than - Chin Chin's™ Chinese Chicken Salad

---

Quote:

---

Is this allowed if I put a © or ™ symbol next to the company's name?

---

that makes absolutely no difference. It would be like a guy breaking into a house and stealing stuff but rather than claiming it is his, give notice he stole it from the house. It would still be illegal.

Quote:

---

Obviously this would be without their consent.

---

that is usually a really really bad place to be, especially when you are talking about multiple mega-corporations with huge legal funds at their disposal. Each one could start a legal action against you where you would have to defend each of them lest you lose by default. One suit alone would be thousands, if not tens of thousands of dollars, even if you won. Fighting multiple suits is likely to cripple your business, unless you are a millionaire and willing to throw money at it.


Unless I am mistaken, it is not illegal to do what you are suggesting but regardless of that, it is likely to draw the attention of anybody whose product you are copying. You may wish they didn't notice you once they do.

As I understand it, you would be basically using the trademarks of others in the names of your product, and that will raise trademark infringement problems. Why not give your items a unique name and simply state that your food is better than anyone else’s, if that’s what you believe to be the case?

This is known as a marketing tactic. We are prepared to go through the legal aspect as long as we know from the start that we aren't breaking any laws.

Alternatively, would it be illegal to say in an interview "my clam chowder is better than the clam chowder they serve at Wolfgang Pucks Spago."?

Lastly, if we were to get sued would it be a class action suit or multiple individual suits?

Quote:

---

Quoting Film5280

---

Lastly, if we were to get sued would it be a class action suit or multiple individual suits?

---

class action? How? Each action would be an individual action against you since each one would involve separate trademarks with each having to prove they are in fact their trademark. There is nothing in common as far as the plaintiff's would be concerned that would allow for a class action suit. You will have to provide a separate defense for each and every suit brought against you.


so, start socking the money away.


You do realize that is money you cannot recoup, even if you win the suit, right?

and of course, if any of them file suit they will likely seek an immediate injunction to stop your use of their mark until the case is concluded.

Quote:

---

Quoting Film5280

---

This is known as a marketing tactic. We are prepared to go through the legal aspect as long as we know from the start that we aren't breaking any laws.

---

A marketing tactic? You can't think of any of your own creative foods to make that people will enjoy, so you are going to piggyback on the success of others and just make the same thing and call it "better than..." and that is your marketing plan? This is a horrible idea and unless you've had 1,000 people taste test your miracle chef's food, you probably are being a bit too optimistic. Either way, this is a real good way to generate the wrong type of exposure to your business. If your chef is so good, have him go back to the drawing board and come up with some original meals. Most artistic chefs don't like copying off of others anyway.

In addition to the trademark woes, you also have an advertising problem. In order to claim something is "better" than something else, you need to be able to justify it. Note that claiming yours is the "best" however, is just considered advertising puffery and doesn't need justification.

Quote:

---

Quoting Film5280

---

We would like to use their name as a reference for our customers. Saying it's: better than X - where X is the reference point.

---

You're not talking about a typical one-on-one comparison, something for which even large brands exercise caution (e.g., "Our product is better than the leading brand" rather than identifying the leading brand by name) or in a specific context in which they can substantiate the outcome ("the Pepsi challenge"). You're talking about taking on brand names across your entire menu, based upon... I guess it would ostensibly be the personal opinion of the chef. If your restaurant actually started to achieve some level of success, you can anticipate that you would draw the attention of a wide range of deep-pocketed trademark holders, all of whom would want you to substantiate your claims. By that time they would be aided by any number of consumer reviews in which your customers expressed disagreement with your marketing stance, as it's inevitable with your marketing approach that some customers would disagree with your claims. I expect that it would be difficult for you to substantiate that your across-the-board claims were substantiated and not misleading, as opposed to being a marketing gimmick.

Quote:

---

Quoting Film5280

---

We are not actually coping the product, but making a superior product and giving our customers a reference point.

---

That actually can create problems with the comparison, as when you make a direct comparison of your product to a known food product you are creating a consumer expectation of similarity. If a customer orders your "Better than Ordinary Manhattan Style" claim chowder and you serve New England Style, even if you're right you're going to have a lot of unhappy customers who wanted a chowder with a tomato base. Also, frankly, it undermines your point of comparison. You're no longer talking about "tast[ing] a dish and recreat[ing] the exact same thing", but are talking about creating a different product and making a subjective and rather inexplicable comparison to the known brand.

Quote:

---

Quoting Film5280

---

This is known as a marketing tactic. We are prepared to go through the legal aspect as long as we know from the start that we aren't breaking any laws.

---

This is not a question of "legal" vs. "illegal" -- you're not going to jail if somebody disagrees with your comparison. Its a question of what might inspire a FTC investigation or get you sued.

You need to have your discussion with the IP lawyer who will be handling the defense of claims made against you, and also with your insurance agent to see if you can get any coverage that would help you cover the legal costs, to make sure that you have the budget to fight off large corporations.

Quote:

---

Quoting Film5280

---

Alternatively, would it be illegal to say in an interview "my clam chowder is better than the clam chowder they serve at Wolfgang Pucks Spago."?

---

A one-off comparison in an interview is a completely different context than a menu listing one such comparison after another. In an honest interview, you can expect that the interviewer is going to want you to substantiate your claims / bravado.

Quote:

---

Quoting Film5280

---

Lastly, if we were to get sued would it be a class action suit or multiple individual suits?

---

Each action would be an individual action.

It seems like some of you are taking this personally with the semi-put-down responses. Other companies have done similar stunts such as Beyond Meat, and Dumb Starbucks. Both of which received wide national press.

I simply wanted to understand the ramifications of these actions. I come on these law forums to get answers and find lawyers with a creative mind who can represent us. I'm not here to offend paralegals and lawyers.

Quote:

---

Quoting Mr. Knowitall

---

You're not talking about a typical one-on-one comparison, something for which even large brands exercise caution (e.g., "Our product is better than the leading brand" rather than identifying the leading brand by name) or in a specific context in which they can substantiate the outcome ("the Pepsi challenge"). You're talking about taking on brand names across your entire menu, based upon... I guess it would ostensibly be the personal opinion of the chef. If your restaurant actually started to achieve some level of success, you can anticipate that you would draw the attention of a wide range of deep-pocketed trademark holders, all of whom would want you to substantiate your claims. By that time they would be aided by any number of consumer reviews in which your customers expressed disagreement with your marketing stance, as it's inevitable with your marketing approach that some customers would disagree with your claims. I expect that it would be difficult for you to substantiate that your across-the-board claims were substantiated and not misleading, as opposed to being a marketing gimmick.

---

Would it make a difference if the comparison was measurable? For example: Sweeter than Coca Cola.




The kind of game plan I would like to see in order to proceed would go like this:

Create a menu that bends the rules as far as they go without breaking them. Meaning if we end up in trial, there is a good possibility of winning. Then, if we go to trial and if we win, can any other company sue for the same subject?

I'd like to think if it is an exact case with a different company, a judge would throw the case out as it would be redundant.

Quote:

---

Quoting Film5280

---

It seems like some of you are taking this personally with the semi-put-down responses.

---

If that's your interpretation, you are reading that into the responses. You're the only person here to whom this is personal.

Quote:

---

Quoting Film5280

---

Other companies have done similar stunts such as Beyond Meat, and Dumb Starbucks. Both of which received wide national press.

---

"Meat" isn't somebody's trademark.

"Dumb Starbucks" was a publicity stunt. They hoped to sidestep trademark law by calling the operation an "art gallery" and claiming that their use of the altered Starbucks trademarks and logos was protected as parody, and they gave away the coffee for free -- that's not going to work for your business model. The health department shut the place down before they were sued.

Quote:

---

Quoting Film5280

---

Would it make a difference if the comparison was measurable? For example: Sweeter than Coca Cola.

---

How would that be appealing to customers? What would be the purpose of the comparison, other than as a contrived basis to use the third party's trademark?

Quote:

---

Quoting Film5280

---

Then, if we go to trial and if we win, can any other company sue for the same subject?

---

Every singe trademark holder can sue you. The outcome of a different lawsuit would not be relevant, and would not result in the dismissal of a different mark holder's lawsuit.

I suggest contacting a trademark litigator and asking, "What's your hourly rate?" Then ponder carefully whether you are capitalized well enough to survive even one lawsuit.

This is just a bad business idea. I don't know where the OP is getting that this is a viable strategy, but this isn't how business works in the U.S. You innovate. You create a better product for less money. You create a product that no other product can compare to. Instead, you are copying off of established food items and you want to call it "Better than...". That's a recipe for disaster. Again, tell you "superior" chef to come up with some ideas that are unique and his own rather than just copying off of everyone else and playing juvenile marketing games.

I'll have the beefier than McDonalds 0.25 pounder with a sweeter than coca cola drink and a crispier than crisp side of fries. For real? lol

Quote:

---

Quoting Mr. Knowitall

---

"Meat" isn't somebody's trademark.

---

I don't think you are completely familiar with what Beyond Meat did:

https://www.google.com/search?q=beyo..._AUoAw&dpr=0.9

Quote:

---

Quoting Mr. Knowitall

---

"Dumb Starbucks" was a publicity stunt. They hoped to sidestep trademark law by calling the operation an "art gallery" and claiming that their use of the altered Starbucks trademarks and logos was protected as parody, and they gave away the coffee for free -- that's not going to work for your business model. The health department shut the place down before they were sued.

---

Dumb Startbucks was a publicity stunt indeed. The creator had no intention of pursuing the business. He opened the business based on the parody law for a TV show. That is a case where many would think it is 100% infringing on a trademark but he found a loophole. If they had gone to trial, they could have won or lost, but I believe they had a pretty good argument and that's what I'm looking for.

Quote:

---

Quoting Mr. Knowitall

---

Every singe trademark holder can sue you. The outcome of a different lawsuit would not be relevant, and would not result in the dismissal of a different mark holder's lawsuit.

I suggest contacting a trademark litigator and asking, "What's your hourly rate?" Then ponder carefully whether you are capitalized well enough to survive even one lawsuit.

---

I've paid over $1,000 talking to 3 different lawyers in California about this subject. I finally realized to find a lawyer to come with a winning argument for this controversial topic would be a lawyer with a creative mindset. Someone like the adviser for Dumb Starbucks who thought of the parody law as a loophole (whether he was right or wrong).

Quote:

---

Quoting Film5280

---

I don't think you are completely familiar with what Beyond Meat did:

---

What is shown in those pictures is nothing like what you are proposing to do. What you're proposing is akin to what got Just Mayo sued by Unilever, "Unilever said Just Mayo lacked testing to back up the claim on its Facebook page that it beat Hellmann’s in a taste test." The lawsuit was dropped in the wake of public criticism of Hellmann's, but so was the comparison.

Quote:

---

Quoting Film5280

---

Dumb Startbucks was a publicity stunt indeed.... but I believe they had a pretty good argument and that's what I'm looking for.

---

So your business model no longer involves product comparison or sales, but you intend instead to parody other brands while giving away your food for free?

Quote:

---

Quoting Film5280

---

I've paid over $1,000 talking to 3 different lawyers in California about this subject. I finally realized to find a lawyer to come with a winning argument for this controversial topic would be a lawyer with a creative mindset.

---

So... three different IP lawyers have already told you that your idea is foolish, but you don't want to listen to those lawyers and you don't want to listen to anybody here. You instead intend to keep asking the same question until you get the answer you want to hear, even if that answer comes from the village idiot?