With some cases, you just shake your head. In this case, a restaurant purveyor thought it would be okay to open a restaurant by the name of the “Krusty Krab.” For those of you who have no reason to have been watching cartoons for the past 20 years, this is the name of the restaurant in which SpongeBob SquarePants works, flipping crabby patties as a fry cook. SpongeBob Squarepants is a Nickelodeon cartoon character who has been very popular with young children (and certain college students). Again, for those of you who do not know what I am talking about, click here to listen to the show’s catchy opening song.
In Viacom International Inc. v. IJR Capital Investments, LLC, Judge Gary Miller (S.D. Tex) granted summary judgment to Viacom (the owner of Nickelodeon) for state trademark infringement over IJR’s intended use of the name KRUSTY KRAB for its restaurant. On its state trademark infringement claim, there were a few factors working against Viacom: it had not registered KRUSTY KRAB as a trademark, and it does not use the name in an actual restaurant. Nevertheless, the Court found that Viacom had a valid trademark in KRUSTY KRAB by virtue of acquiring secondary meaning. While the Court found secondary meaning, it did not define the class of goods over which KRUSTY CRAB established such secondary meaning.
Turning to likelihood of confusion, the Court found compelling evidence of likelihood of confusion between the fictional KRUSTY KRAB and IJR’s KRUSTY KRAB. The Court found significant overlap between the two entities in target geographic areas and customer base. The Court also accepted a survey that concluded that 30% of typical restaurant patron respondents exercising ordinary caution identify Viacom as the entity that would have operated, approved or sponsored a restaurant bearing that name. The Court also noted that IJR likely knew of the SpongeBob SquarePants connection and looked to capitalize on that association, which also weighed in Viacom’s favor.
The Court denied Viacom summary judgment on its federal and state dilution claims because they were not ripe (IJR had not yet used the mark in commerce). The Court also denied summary judgment on Viacom’s other Lanham Act claims, including unfair competition, because they were not briefed. On these issues, the Court displayed its knowledge of popular culture, noting that SpongeBob would likely respond, “Aw, tartar sauce!” to the denial.
The next time someone thinks about crossing SpongeBob SquarePants, we caution them with this little ditty. Go ahead and sing along.
Who works somewhere KRUSTY way under the sea?
Unregistered, fictional and so KRABBY!
If trademark infringement be something you wish
He’ll take you to court and you’ll flop like a fish!