Saturday, February 19, 2011

Fried Chicken Trademark Fight

With everything else there is to worry about in this world, you would think people could avoid fighting over who owns the right to use the name of a famous president as a trademark for fried chicken restaurants. But you would be wrong. As reported in the New York Times, there is a battle going on for the KENNEDY mark in connection with fried chicken restaurants -- http://www.nytimes.com/2011/02/14/nyregion/14chicken.html?_r=1&scp=1&sq=kennedy%20fried%20chicken&st=cse
Mr. Abdul Haye owns the registered mark KENNEDY FRIED CHICKEN, Reg. No. 2994240, for restaurant services. The registration issued September 13, 2005, which means it is now in the filing period for the declaration of continued use. According to the New York Times article, the KENNEDY fried chicken brand "has spawned hundreds of imitators." The article states that Mr. Haye is sending out hundreds of letters to other parties who are using the KENNEDY name demanding they pay him a monthly franchise fee. There are a few problems that Mr. Haye should be aware of here.
First, supposing some of the recipients of the letters are willing to comply, there will need to be some mechanism put into place to ensure that the owner of the trademark exercises adequate supervision over the nature and quality of the services - otherwise there could be a naked licensing issue.
Second, it seems that some of the letter recipients may assert the defense of laches - one has to wonder if Mr. Haye may have waited to long to assert his rights.
Third, as the NYT article indicates he is sending the letters "to Kennedy outlets across the country," it would seem that some of the other users of the name may claim they have common law priority in their market area, while others may claim that there is no likelihood of confusion because Mr. Haye does not operate in their locality and has no present plans to begin operations there.
Long story short, although Mr. Haye enjoys the benefits of a federal registration and the legal presumptions that go with it, he may have a hard time if he has to go to court against some of the other KENNEDY outlets. If he really is sending out hundreds letters he may be biting off more than he can chew (sorry). Let's hope that Mr. Haye is aware of the necessity to file maintenance documents with the USPTO between the 5th and 6th anniversary of his registration date - otherwise he may miss the deadline to file his section 8 declaration and lose his registration.

2 comments:

  1. Wonderful blog & good post.Its really helpful for me, awaiting for more new post. Keep Blogging!




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