The Franchise Memorandum

A federal court in Michigan has denied a restaurant chain’s motion for preliminary injunction because it failed to demonstrate likelihood of success on its claim that a competing franchisor was infringing trademarks and trade dress. Eastpointe DWC, LLC v. Wing Snob Inc., 2020 WL 3412266 (E.D. Mich. June 22, 2020). Detroit Wing Company has been operating restaurants primarily selling chicken wings since 2015. Wing Snob Inc. subsequently opened its first restaurant and rapidly expanded, opening locations in near proximity to other Detroit Wing Company locations. Detroit Wing Company sued, alleging that Wing Snob’s owner intended to copy Detroit Wing Company’s business and did so by locating Wing Snob restaurants near Detroit Wing Company restaurants, using the same colors in the restaurant, using the same wood slats on the walls, having a similar logo, copying Detroit Wing Company’s menus and menu trade dress, utilizing the same online ordering method, and implementing a similar social media strategy, which altogether triggered consumer confusion.

The court held that Detroit Wing Company’s arguments failed to establish that there was a likelihood of success on the merits. The court addressed the trade dress and trademark infringement claims together as the legal requirement of consumer confusion overlaps for both causes of action. Detroit Wing Company argued that elements of its restaurant design and logo were arbitrary and therefore distinctive, but the court found that consumers were unlikely to associate any aspect of the design or logo as unique or distinctive to Detroit Wing Company. For example, the mere fact that Detroit Wing Company utilizes a chicken in its logo did not distinguish it from any number of chicken restaurants who also use a chicken in their logos. Similarly, neither the design nor logo had acquired a secondary meaning based on evidence submitted to the court. Then the court determined that the claims of customer confusion lacked particularity as to what was confusing, and the logos and restaurant designs were sufficiently different so that confusion was unlikely. As to the copyright claim, Wing Snob presented testimony that it was unaware of Detroit Wing Company’s copyrighted work and had no access to it, that a third party created Wing Snob’s logo, and that any use of Detroit Wing Company’s copyrighted work had ended. Therefore, Detroit Wing Company had not met its high burden to show entitlement to a preliminary injunction.