By Russ Lay on November 17, 2011
But according to the Philadelphia restaurant chain Chickie’s and Pete’s, any use of the term crab fries, even variations such as “krab fries,” is an infringement of their trademarked menu item “Crab Fries.” And that is causing real concern for the local restaurant Crabby Fries.
The owner of Chickie’s and Pete’s has been sending cease-and-desist letters throughout the mid-Atlantic, demanding restaurants remove the phrase “crab fries” or several variations from their menus and names.
If the recipients refuse to comply, the chain proceeds to file a civil suit in federal court, which leads to complications for many small restaurants.
The Voice has spoken to three local attorneys, all of whom wish to remain off the record as they are not involved in the case. The attorneys noted that once a trademark is registered, owners are expected to “vigorously defend” it to establish a basis for their claim.
According to the philly.com website, which includes the Philadelphia Inquirer, Daily News and the Philly Tablet under its umbrella, Chickie’s and Pete’s trademarked the phrase “crab fries” in 2007. The owner of the company, Pete Ciarrocchi, has been “passionate about defending that trademark.”
Local boosters such as Phillymag.com go as far as to state “he’s the inventor of the crab fry.”‘
Ciarrocchi is a major player in the City of Brotherly Love. The same article in Phillymag.com notes he is best friends with Jon Bon Jovi. He holds court at Eagles games and recently became a co-owner of the Philadelphia Soul, an Arena Football League franchise started by Bon Jovi.
The article on philly.com notes that Ciarrocchi has successfully forced a restaurant on Maryland’s Eastern Shore to drop the phrase “crab fries” from its menu. The owner voluntarily withdrew the “offending” menu item rather than retain counsel to fight the case in court.
On Oct. 27, Ciarrochhi’s attorney’s filed suit against J&P Pizza in Westminster, Md. for using the phrase “Maryland Crab Fries” on its menu.
That lawsuit, which is worded almost exactly the same as the one recently filed against “Crabby Fries” in Kill Devil Hills, maintains the defendant’s “recent roll out” of the phrase Maryland Crab Fries “can only be seen as a willful attempt to palm off plaintiff’s goodwill in its CRAB FRIES® mark, and a blatant attempt to create consumer confusion.”
All three attorneys we spoke to were skeptical that Chickie’s and Pete would prevail in court, noting that “Crabby Fries” is not the same phrase as “CRAB FRIES, is not likely to cause consumer confusion in any area outside of Chickie’s and Pete’s primary market and most importantly, is probably too generic a term to even be trademarked.
This might all sound well and good for our local entrepreneurs, who would be forced to change the name of their restaurant and the two years of brand and consumer goodwill they have built since opening were it not for the fact that trademarks, unlike patents, are not vetted by the government when registered. Disputes are left to the courts.
Although two of the three attorneys we spoke to felt sure a North Carolina judge would dismiss the suit without trial, restaurant owners faced with such actions from Chickie’s and Pete must hire attorneys to respond to the cease-and-desist notices, the lawsuit that invariably follows and then the first appearance before the judge.
Thousands of dollars could be expended on that gamble alone. If the judge were to allow the case to proceed, estimates of the cost to defend have ranged from $10,000 to as high as $50,000.
Most small restaurant owners cannot afford even the early stages of defending their restaurant against a claim.