Sports Bar Bullies Seafood Joint To Change Menu Item Name Over ‘Crab Fries’ Trademark

It's amazing just how many of the trademark disputes we cover here are only disputes because the USPTO granted a trademark that it shouldn't have. The examples of this sort of thing are legion, but they typically revolve around trademarks that are either generic, descriptive, or both.

Which brings us to Chickie's and Pete's, a chain of sports bars based out of Philadelphia with locations throughout the country. Chickie's and Pete's has a menu item for which it got a trademark. That item is crab fries". What are crab fries? Well, according to the company's own menu, they are fries topped with crab meat and a side of dipping cheese sauce. If that doesn't make the term 100% descriptive, it is very damned close. Making this slightly more confusing is that the history of their crab fries is such that it didn't always include crab meat. Originally, it was just Old Bay spice that went over the fries.

But the USPTO granted the trademark anyway. And since then, the restaurant has bullied and/or sued other eateries over their own use of the term, sometimes to hilarious lengths.

The first trademark for Crab Fries was registered in 1998 when Chickie's & Pete's expanded to Veterans Stadium. Two years later, the company went after a Northeast Philly restaurant called Tony's Place for serving a menu item called crab fries" similar to those made by Chickie's & Pete's. Their victory in court helped set the precedent that crab fries" was legally protected regardless of the actual food involved, BillyPennreportedin a rundown of the trademark's history.

The owner of Tony's Place put Chickie's & Pete's trademarks to the test again in 2013. Despite losing the earlier case, the restaurant began showing photos of crabs next to the word fries. In an 85-page complaint, Chickie's & Pete's argued this created subliminal confusion" in the marketplace and caused irreparable harm" to the business. A federal judge ruled that putting crab photos next to friesalso infringed on the trademark, but denied claims of unjust enrichment that would have allowed Chickie's & Pete's to seek restitution.

The obvious question is if you were going to create a food item that consists of french fries topped with crab meat, what would you call it? You could go with a fanciful name and trademark it, sure. But if you're not the sort of restaurant owner that wants to trademark every last item on your menu, you might just call them the obvious: crab fries. Because it's descriptive. Except you can't, or else Chickie's and Pete's lawyers will come calling.

And that's what happened most recently to Betty's Seafood Shack in New Jersey, which had a menu item for crab fries until it received a cease and desist letter from Chickie's and Pete's.

In what may be the most literal example yet, Betty's Seafood Shack in Margate received a cease-and-desist letter from Chickie's & Pete's lawyers last week saying the restaurant couldn't use crab fries"to describe fries topped withjumbo lump crab meatand house-made queso, according to an Instagram post by the restaurant. The post includes a photo of the letter citing Chickie's & Pete's three U.S. Federal Trademark Registrations.

That Instagram post was itself confusing, as it appears the lawyers don't really even know what is on their client's menu. Here is the description from Betty's as to the conversation they had.

So I called the attorney, and asked, does Chickie use crab in their Crabfries?' He said, uh, no....I don't believe so,'" the post says. Then I asked, Does Chickie use Queso on their Crabfries?' And he said, no, they don't.' So I said, then Betty's is allowed to serve Crab and queso on fries as long as we don't call them Crabfries, seeing you don't put any crab on your Crabfries?' And he said, Yes, that's right.' I can't make this stuff up. I said, ok.'"

Betty's Seafood Shack agreed to drop the Crabfries name and instead go with Jumbo Lump Fries" when offering the special in the future.

We have Ceased and Desisted and concurrently have entered The Twilight Zone," the post says.

Except for two things. First, Chickie's and Pete's absolutely does put crab meat and queso on at least some of its crab fries. Second...it shouldn't fucking matter! The term is descriptive in nature and not a fanciful term. If you walk up to a random person that has never had this food at all and asked them what they think crab fries are, they are overwhelmingly likely to answer that it's a combination of french fries and crab meat. Which is what Betty's was selling.

Whatever that is, it is not trademark infringement. The USPTO never should have granted this mark in the first place and I can't for a second imagine a world in which the mark would survive a petition for cancellation. But, as we always say, trademark bullying works. In this particular case, the menu name for Betty's has been changed in lieu of expensive litigation.