Friday, June 6, 2008

Battle of the Wolfgangs Part II – The “other” Wolfgang Strikes Back

I previously wrote here about the lawsuit filed by Wolfgang Puck against Wolfgang Zwiener over the latter’s use of the name “Wolfgang’s Steakhouse by Wolfgang Zwiener” in connection with Zwiener’s recently opened Beverly Hills steakhouse which is close in proximity to Puck's own Beverly Hills steakhouse restaurant, Cut. See also’s article on the dispute here.
Yesterday, Zeiener announced in a press release that he had filed an answer to Puck’s initial complaint which also asserted a breach of contract counterclaim against Puck claiming that Puck, by challenging Zwiener’s chosen name for his steakhouse, breached a March 2007 settlement agreement reached between the two which purportedly allowed Zwiener to open steakhouses outside New York City using the disputed name.

Puck, however, claimed in the original lawsuit that the deal was that Zwiener agreed to display his name prominently alongside any future restaurant – and Puck agreed to do the same should he establish a restaurant in Manhattan. Puck’s issue is with the fact that the “by Wolfgang Zwiener” is in much smaller font than the Wolfgang’s Steakhouse.

The press release attempts to dispute Puck’s claims of surprise by noting that the development process for the restaurant was publicly conducted and involved the direct and extensive involvement of the Beverly Hills City Council which approved Zwiener’s restaurant to occupy the location owned by the City of Beverly Hills and even approved the signage used by Zwiener. [Comment: I don’t think a city council’s approval of signage is going to carry any weight in a trademark infringement likelihood of confusion analysis.]

The release quotes the following from the answer filed by Zwiener’s attorneys:

Despite Puck’s melodramatic effort to paint Defendants as villains straight out of “Casablanca,” . . . the actual evidence reflects not a creative Hollywood movie plot, but only a more mundane and entirely legitimate business decision. Defendants expanded into Beverly Hills, as they had an absolute right to do under the Settlement Agreement with Puck, and conducted themselves in complete accordance with that agreement. Defendants sought to build on their own reputation developed as a result of their successful introduction of other “Wolfgang’s Steakhouse” restaurants in New York. While Puck may envision an imaginary world filled with sinister plots to take advantage of his good name, the record evidence simply does not support the Hollywood fiction he seeks to create.

Personally, I liked the “likelihood of confusion” analysis performed by Jessica.Gelt, a Los Angeles Times food critic, who puts her own unique spin on the controversy in her article “Steak-off! Wolfgang's vs. Cut.”

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