Thursday, August 13, 2015

FUDDRUCKERS: Burgers And Trademarks...

A Fuddruckers® restaurant recently opened in Santa Monica, California!... For burger enthusiasts and trademark practitioners alike, this is a welcome addition to the burger options on the Westside and well within walking distance from the shores of the Pacific Ocean...

And it seems like forever that I’ve wanted to try a Fuddruckers (aka, Fudd)!… at least since my trademark law class at The John Marshall Law School in the Fall of 1990 when I was enrolled in their LL.M program in Intellectual Property… After all, there was that trade dress case out of the 9th Circuit involving Fuddruckers v. Doc’s B.R. Others back around 1987 (see cite and link below).

And then this past year or so the KOO-KOO-ROO restaurant (same ownership, apparently) closed at the corner of 20th St. and Wilshire Blvd., in Santa Monica, California… and in its place opened a Fuddruckers.  After what seemed like over a year of having to wrangle with the City of Santa Monica over permitting, etc., it finally recently opened and tonite I had a chance to try it for the first time ever and was not disappointed. I had the Classic 1/3 lb. cheddar cheeseburger with their wedge fries (see photos…) and was impressed with the garnishing bar (think salad bar; see photo below) with lots of options...

I also followed it up with a Chocolate Shake, and if you ask…, they will put some peanut butter in it too… so you don’t have to choose between those two flavors. The verdict on the shake was Unanimous!...  It was Outstanding!


Trade Dress; CLE; FYI...



United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 16, 1986.
Decided Aug. 24, 1987.




June 26, 1992

In this opinion by the Supreme Court, it held, in part, that inherently distinctive trade dress is protectable without proof of secondary meaning.

The Supreme Court also cited a number of cases from different Circuit’s, including the 9th Circuit opinion in the Fuddruckers case referenced above.

The Fifth Circuit was quite right in Chevron, and in this case, to follow the Abercrombie classifications consistently and to inquire whether trade dress for which protection is claimed under § 43(a) is inherently distinctive. If it is, it is capable of identifying products or services as coming from a specific source and secondary meaning is not required. This is the rule generally applicable to trademark, and the protection of trademarks and trade dress under § 43(a) serves the same statutory purpose of preventing deception and unfair competition. There is no persuasive reason to apply different analysis to the two. The "proposition that secondary meaning must be shown even if the trade dress is a distinctive, identifying mark, [is] wrong, for the reasons explained by Judge Rubin for the Fifth Circuit in Chevron." Blau Plumbing, Inc. v. S.O.S. Fix it, Inc., 781 F. 2d 604, 608 (CA7 1986). The Court of Appeals for the Eleventh Circuit also follows Chevron, Ambrit, Inc. v. Kraft, Inc., 805 F. 2d 974, 979 (1986), and the Court of Appeals for the Ninth Circuit appears to think that proof of secondary meaning is superfluous if a trade dress is inherently distinctive. Fuddruckers, Inc. v. Doc's B. R. Others, Inc., 826 F. 2d 837, 843 (1987).


The TTABlog, by John L. Welch

Wednesday, January 11, 2012

Test Your TTAB Judge-Ability on These Three Mere Descriptiveness Refusals

This blog post by John Welch discusses some recent trademark applications filed by Fuddruckers and refused by the USPTO as being merely descriptive and which refusals the TTAB later sustained on appeals by Fudd. 


FYI Only; One of Fuddruckers® service mark registrations for "restaurant services"; USPTO "TESS" Record (partial extract):


Goods and Services    IC 042. US 100. G & S: Restaurant Services. FIRST USE: 19800315. FIRST USE IN COMMERCE: 19800315

Mark Drawing Code    (1) TYPED DRAWING
Serial Number    73382882
Filing Date    August 31, 1982
Current Basis    1A
Original Filing Basis    1A
Published for Opposition    July 17, 1984
Registration Number    1298164
Registration Date    September 25, 1984
Owner    (REGISTRANT) Fuddruckers, Inc. CORPORATION TEXAS 8602 Botts La. San Antonio TEXAS 78217


Respectfully submitted,

William E. Maguire

(Disclaimer:  The comments and opinions communicated herein are not intended as legal advice and the use of photos are for illustrative purposes only. Additionally, the author herein has undertaken this blog post as a commentary protected under fair use principles.)

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Friday, June 26, 2015

Trademarks On The Beach AND Main St...

Dateline: Friday morning, June 26, 2015. Santa Monica, Calif...


Surfboards and paddleboards...

It must be summer... check out those school buses in the beach parking lot...

Triumph motorcycle on Main St., in Santa Monica, Calif.

Havana Latte at the M Street Cafe, on Main St... (x-ref: restaurant services)


TOYOTA Tundra pick up truck straight ahead... fender bender to the left...

SMFD on its way to the fender bender we just passed at Bay St. and Ocean Ave...

Woof!...  Somebody with Oregon plates on their SUV and their pet dog getting a look at the palm trees and the view of the Pacific Ocean...    SHORE HOTEL in background (x-ref: hotel services).

Trademarks and service marks are all around us.  Have you registered yours?...

Respectfully submitted,

Will Maguire

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(all photos by & © Will Maguire 2015.)

Saturday, May 02, 2015

Road Trip To #INTA15 San Diego...

Dateline: Saturday, May 2, 2015

405 south to Carlsbad and then along the beach road to Del Mar... (aka, North County San Diego).

The road to #INTA15 for us was, at least in part, along the shoreline of the Pacific Ocean and through the beach towns of North County San Diego.....

and then we left the coast road and got on the I5 south and arrived downtown to our
destination... #INTA15!

Have at great time at #INTA15!...

Respectfully submitted,

Will Maguire
Santa Monica, Calif.

(All photos by & Copyright Will Maguire 2015.)

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Monday, April 27, 2015

Destination: Lone Pine

Downtown Lone Pine

Dateline: Friday, April 24, 2015, exit stage north along the I395 to Lone Pine, Calif.  Gateway to Mt. Whitney and the Alabama Hills, the latter of which has been the site of hundreds of Western films since at least the 1930's.  You name it, it was probably filmed there in parts.  Lone Pine is also home to the Lone Pine Film Museum which highlights many of these films and actors.  The Lone Ranger, Hopalong Cassidy, Roy Rogers, Gene Autry, John Wayne, Clint Eastwood, and many more.

Below, John Wayne's hat and coat from the film, The Shootist

Nevada Smith with Steve McQueen was filmed in part in the Alabama Hills.  Co-starring Karl Malden, who after being gut shot near the end of the film by McQueen's character, yells and prods McQueen to kill him and says, "You're Yellow, ya haven't got the guts..." over and over.

Humphrey Bogart's car from the film, High Sierra, below...

Lone Pine is also a bit past the half way mark from Los Angeles to Mammoth Lakes, Calif.  Rarely have I stopped in Lone Pine but that has changed since this past weekend when I got the chance to visit the museum and some of the stores, shops and motels in town that dedicate themselves to commemorating the films made nearby in the Alabama Hills and in town where the stars and crew would gather for meals and to rest.  Indeed, John Wayne slept at the Dow Villa Inn.

Lone Pine also hosts many of the people who annually attend the Manzanar Pilgrimage in the spring each year.  There is even a coffee house that carries exceptional coffee from locally sourced coffee roaster namely, BLACK SHEEP, out of Bishop, Calif. On the other hand, their flat screen had FOX NEWS on every time I went in the place... so you may not want to sit inside for very long...

The Mt. Whitney Cafe, however, is your typical 60's era coffee shop and diner but with hundreds of photos of western film stars and esp. of John Wayne.

It's only a 13 mile trip up from Lone Pine on the Mt. Whitney Portal Road, open seasonally, to the trail head to the hike that will take you to the top... if you are lucky enough to get a permit from the Park Rangers Office in LP.  It's still worth the trip up to the trail head for the views of Mt. Whitney on the way up and the valley floor on the way down... just be sure to drive slow and carefully... (note: the following 5 photos are from a previous road trip up the Mt. Whitney Portal Rd. on March 29th of this year.)

There is also the 7 mile Movie Road that is passenger vehicle safe and is well worth the trip...

Below, go straight to head up the Whitney Portal Road, or turn right on Movie Road...

... and at the end of the 7 mile loop on Movie Road is Hogback Road...

Happy Trails!...

Respectfully submitted,

Will Maguire

(All photos by & © Will Maguire 2015.)

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