Wolfgang Puck Battles Elon Musk's Brother Over Trademark Rights For 'The Kitchen' In Restaurant Industry
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Generic terms that are allowed trademark protection are the bane of those that still believe trademark law serves a useful function. For the law to work as intended, to protect the public's ability to know what they're buying and from whom they are buying it, trademarks need to be both unique and identifying. When the USPTO instead allows for laughably broad terms or words to be trademarked, it steals from trademark proponents the argument of utility.Take one current trademark dispute, for instance, which happily includes such big names as Wolfgang Puck and the brother of Elon Musk, Kimbal Musk. Those two are currently battling over whether or not the term "the kitchen" ought to be trademarked for the restaurant industry. Puck is opening new digs in Chicago with the name "The Kitchen by Wolfgang Puck." Musk is one of the founders of The Kitchen Cafe out of Colorado. Musk filed a lawsuit against Puck in Colorado over the trademark issue, with Puck's lawyers filing a motion to dismiss while also filing suit in Illinois to have the Chicago area be the venue for the litigation.The Colorado complaint filed by Musk's company makes the following claim.
Puck's "use of The Kitchen immediately caused confusion in the restaurant industry and marketplace," according to the Colorado compliant, which The Kitchen Cafe filed against a different Puck entity, Wolfgang Puck Licensing.The claim is fairly laughable for any number of reasons. There is the generic nature of the term in the restaurant industry, the fact that the term does nothing to identify the source of the restaurant ownership, and, most importantly, the wide swath of restaurants that incorporate the term into their names. And that's the reason for Puck's desire to move the venue to Chicago. Puck's lawyer, Steve Mick, explains it nicely.
Both parties have restaurants in Chicago, Mick said. "And we like the fact that within a mile radius of The Kitchen's location in Chicago, there are five or six other restaurants using the phrase 'kitchen.'"In River North, there's Lyfe Kitchen, Travelle Kitchen + Bar and Doc B's Fresh Kitchen, according to the Illinois complaint. One North Kitchen & Bar is also nearby in the Loop."That just sort of underscores our whole point," Mick said. "They don't get to elbow out everybody."And the fact that they haven't even tried is going to be a problem in the suit. If Puck's restaurants are infringing on Musk's trademarks, why aren't all of these other, longer-standing restaurants likewise infringing? The attorney for The Kitchen Cafe has an answer for this, but it's not a good answer.
"The Kitchen has no issue with descriptive uses of 'kitchen' that do not cause confusion, which is the case in these other instances," said Timothy Getzoff, the attorney representing The Kitchen Cafe. "In contrast, Puck's competing restaurant uses the exact same name, The Kitchen, which already has caused confusion in the market."Which means that Musk's company essentially filed a trademark suit over the word "the." That word is the hangup here, even as the overtly generic term "kitchen" is utilized all over the restaurant industry. If Musk's suit isn't a loser, then I don't know what would be. Yet, again, the ultimate blame lies with a trademark office that saw fit to grant this trademark in the first place.
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