{"id":220,"date":"2017-03-27T22:17:32","date_gmt":"2017-03-28T02:17:32","guid":{"rendered":"https:\/\/trademarks.harnessip.com\/?p=220"},"modified":"2017-04-12T11:05:05","modified_gmt":"2017-04-12T15:05:05","slug":"you-cantt-fake-confusion-steak-is-different-from-fresh","status":"publish","type":"post","link":"https:\/\/trademarks.harnessip.com\/?p=220","title":{"rendered":"You Can’t Fake Confusion; “STEAK” is different from “FRESH”"},"content":{"rendered":"

The Court in Phelan Holdings, Inc. v. Rare Hospitality Management, Inc.<\/em>, [8:15-CV-2294-T-30TBM) (M.D. Fla. March 27, 2017), granted summary judgement that the slogan “You Can\u2019t Fake Steak” is not confusingly similar to\u00a0\u201cYou Can\u2019t Fake Fresh.”<\/p>\n

The Court noted that Phelan’s\u00a0Pinchers Crab Shacks are bright, open air\u00a0restaurants, painted in pastel colors. The walls are adorned with beachy, Florida-themed decorations, such as driftwood signs, mounted fish, large oars, and Caribbean artifacts. Phelan registered YOU CAN’T FAKE FRESH with the USPTO. \u00a0 In contrast, Rare’s LongHorn Steakhouse restaurants are a chain of Western-themed casual steakhouse designed as a Texas-style roadhouse. Rare registered YOU CAN’T FAKE STEAK with the USPTO.<\/p>\n

On summary judgment Phelan abandoned its confusion claims, asserting only a reverse reverse confusion theory. \u00a0The Court noted that\u00a0Both marks incorporate the common buzz phrase\u00a0\u201cYou Can\u2019t Fake . . .,\u201d but that the last word of each mark, i.e., Fresh vs. Steak, is\u00a0completely different with a different meaning. \u00a0An important fact for the court appeared to that do not encounter either mark apart from the parties’ respective house mark. \u00a0The Court discounted Phelan’s linguistic expert because he focused on the first three words of the mark,\u00a0and ignored the fact that the\u00a0words \u201cFresh\u201d and \u201cSteak\u201d are different, and did not account for the parties use of their house marks in connection with their marks, \u00a0The Court also attached a lot of significance to the differences in the parties restaurants. \u00a0The Court discounted Phelan’s survey evidence because the survey only tested forward confusion (finding between 13% and 26% confusion) , because the Phalen was asserting reverse confusion, not forward confusion.<\/p>\n

\"\"<\/a><\/p>\n

Based on the Court\u2019s analysis of the seven factors, Phelan failed to adduce\u00a0sufficient evidence upon which a reasonable jury could find a likelihood of confusion\u00a0between YOU CAN’T FAKE FRESH and YOU CAN’T FAKE STEAK. \u00a0This was despite Phalen presenting both a linguistic expert and a survey expert. \u00a0Apparently you can’t fake confusion.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

The Court in Phelan Holdings, Inc. v. Rare Hospitality Management, Inc., [8:15-CV-2294-T-30TBM) (M.D. Fla. March 27, 2017), granted summary judgement that the slogan “You Can\u2019t Fake Steak” is not confusingly similar to\u00a0\u201cYou Can\u2019t Fake Fresh.” The Court noted that Phelan’s\u00a0Pinchers … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-220","post","type-post","status-publish","format-standard","hentry","category-likelihood-of-confusion"],"_links":{"self":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/220","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=220"}],"version-history":[{"count":5,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/220\/revisions"}],"predecessor-version":[{"id":230,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/220\/revisions\/230"}],"wp:attachment":[{"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=220"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=220"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/trademarks.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=220"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}