BRENNAN'S, INC., PLAINTIFF VS. BERT CLARK BRENNAN AND BLAKE W. BRENNAN, DEFENDANTS, 512 F. Supp. 2d 559

Summary

The competitors were the restaurant's former employees as well as being sons of one of the restaurant's owners. After they sought trademark protection for a proposed mark that incorporated the family surname, the restaurant sued, alleging that any use of the family surname to identify the competing restaurants would confuse the restaurant's established customer base. The court found that the restaurant's mark was incontestable, i.e., conclusively presumed to have acquired secondary meaning under 15 U.S.C.S. § 1065, as it had been used continuously since registration in 1973. However, the competitors' proposed mark was not likely to confuse consumers in the relevant market, as it was widely known that other family members operated restaurants bearing the family surname. The restaurant was thriving, indicating that consumers had not been misled. Although similar in appearance and menu, the new restaurants were far enough apart to be noncompeting. The marks' exemplars were distinct in ...