November 30, 2005
Calmer Than You . . .
Faithful FranchiseLawBlog readers know that this is a forum for hard-edged franchise news stories and no place for treacly personal interest items. But we would be remiss not to inform you that effective November 28, Kim Toomey, our founding editor and blogger extraordinaire, became the General Counsel of Century 21 Real Estate LLC. In the crusty-but-benign manner of a 21st century Lou Grant, Kim’s steady editorial hand, combined with her crisp writing and comprehensive knowledge of franchise law, guided the blog from inception to its present position of legal blog prominence. We wish Kim the best of luck and we hope to maintain her high blogging standards.
Let’s Just Wait and See What Happens
Three plaintiffs who sued Waffle House, Inc. and its Texarkana, Texas franchisee for alleged racial discrimination have agreed with the defendants to stay their action until other similar cases are decided. A motion filed in Texarkana Federal Court stated: “. . . certain representatives of the plaintiffs in various actions have mediated with representatives of the franchise affiliate defendants in these multiple actions and have agreed to a framework for a comprehensive resolution of the cases.” Who says lawyers bloviate? Waffle House has denied the discrimination allegations of discrimination and stated that its anti-discrimination policies, training on and enforcement of these policies are top corporate priorities.
November 17, 2005
Yamoto Distributor and Yamaha Working Towards Settling Infringement Lawsuit
Patriot Motorcycles Corporation, the U.S. distributor of Yamoto motorcycles and ATVs, is trying to settle a lawsuit filed against it by Yamaha Motor Corporation and its parent, Yamaha Motor Co., Inc., the world's second largest manufacturer of motorcycles and ATVs. Plaintiffs filed the complaint in California federal court in October claiming that Patriot and the manufacturer and dealer of Yamoto products infringed on the Yamaha marks by importing and selling "knock-offs" of Yamaha products, adopting a similar brand name and decorating Yamoto goods with graphics similar to Yamaha's. At the center of the dispute are Yamaha's Raptor line of ATVs and its model TT-R125 off-road motorcycles. Yamaha seeks to permanently enjoin defendants from selling the infringing products and treble and punitives damages for trademark infringement, trademark dilution, false designation of origin, false advertising, copyright infringement and unfair competition. Click here for photos comparing the Yamaha and Yamoto products at issue.
November 14, 2005
Marriott International Implements New Policies To Protect Trademarks
Marriott International recently announced new guidelines for online travel companies marketing and selling Marriott hotel rooms. The "Standards & Guidelines for Online Marketing Using Marriott Trademarks" are intended to curb abuse of the Marriott trademarks and prohibit travel companies from using Marriott marks in the text or title of any paid ads or on a website without the company's permission. Under the guidelines, Marriott will provide notice to violators before pulling authorization to sell Marriott accommodations, withholding commissions and/or filing infringement lawsuits. The guidelines apply to the Marriott, JW Marriott, Renaissance, Courtyard, Residence Inn, Fairfield Inn, TownePlace Suites, Springhill Suites, Marriott Vacation Club, Ritz-Carlton, ExecuStay and Marriott Executive Apartments brands.
November 09, 2005
Mercedes Dealer Sues Company For Violation of Right of First Refusal
The Ghesquiere family, owners of three Mercedes-Benz dealerships in Michigan, filed a lawsuit against the company in federal court on Monday alleging that Mercedes breached their right of first refusal when it granted another group the right to open a new dealership in their territory. According to one local news source, plaintiffs allege that they were granted a right of first refusal for an additional dealership in their 1999 agreement and that in the last several years, they asked Mercedes for permission to open a fourth dealership. Although plaintiffs' dealer agreement expired on May 31, 2003, they claim that Mercedes was planning to open an additional dealership before the contract expired. A Mercedes spokesperson stated that the company acted in good faith and that the lawsuit lacks merit.
Boston Market Settles Harassment Lawsuit
Boston Market, the quick-casual restaurant chain known for its home-style meals, recently agreed to pay $150,000 to settle a lawsuit filed by the EEOC two years ago on behalf of a former employee alleging sexual harassment and disability discrimination in connection with the company-owned store in Ronkonkoma, New York. According to Newsday.com, the lawsuit alleged that claimant, who was learning disabled, was taunted by her co-workers because of her disability and because she needed a coach for her position as greeter, cashier and server at the restaurant. One co-worker, who EEOC alleged touched claimant inappropriately, later pled guilty to criminal charges in connection with the harassment. As part of the settlement, Boston Market agreed to establish procedures for investigating employee complaints about harassment and discrimination and to provide prevention training for managers and employees.
November 08, 2005
Burger King Franchisee Comments on Company's Breakup with the NFA
As reported in the October 20, 2005 blog entry, Burger King formally severed relations with its National Franchise Association. Here's one Burger King franchisee's take on the situation.
November 04, 2005
Jimmy John's Settles Menu Copyright Suit
Jimmy John's, which owns, manages or franchises 335 gourmet sandwich shops, settled a copyright and trade dress infringement lawsuit against TM Foods of Avon, Inc., which operates a House of Sandwich shop in Avon, Indiana. Jimmy John's filed suit in the Southern District of Indiana alleging that the House of Sandwich's menu and menu boards infringed on Jimmy John's copyrights. Jimmy John's claimed that the overall selection, arrangement and grouping of sandwiches and the use of a unitary price for each sandwich group on the House of Sandwich menu resembled the copyrighted menus used by Jimmy John's. As part of the settlement, TM Foods agreed to pay Jimmy John's $50,000 and to destroy its menus and menu boards. Additionally, the parties entered into a consent judgment which permanently enjoins the owners, officers, directors and shareholders of the House of Sandwich from copying or using aspects of its menus.
November 03, 2005
Subway Sends Cease and Desist Letter to Connecticut Sandwich Shop
Subway has asked Steakways Famous Philly Cheese Steaks, a sandwich shop located two miles from the company's headquarters in Milford, Connecticut, to cease and desist using the name "Steakways," which Subway claims is confusingly similar to its own. According to one local news source, Subway's letter to Steakways stated that Steakways must change its name within two weeks or Subway will bring trademark infringement claims. Kevin Kane, spokesperson for Subway, said that Subway has always supported small business owners, but the company must protect its name if it appears that there may be an infringement. Steakways, which specializes in Philly cheesesteaks and other hot sandwiches, has been open for one year and plans to open a second store in nearby Bridgeport.
November 02, 2005
Third Circuit Reverses Preliminary Injunction Against Lending Tree
The Third Circuit Court of Appeals recently lifted a preliminary injunction prohibiting Lending Tree from using certain brand names affiliated with Cendant Corporation in marketing its real estate broker network. As reported by one news source, Cendant brands, Century 21, Coldwell Banker and ERA, filed a lawsuit against Lending Tree in June 2003 for trademark infringement alleging that Lending Tree's use of the brand names on its website could lead to consumer confusion about the brands' affiliation with the website or with Lending Tree. See previous blog entries here. The New Jersey federal court enjoined Lending Tree's use of the Cendant marks on its site, but the Third Circuit Court of Appeals remanded with instructions to the lower court to decide whether plaintiffs met their burden of proving a likelihood of confusion and showing that Lending Tree intended the public to believe that the Cendant companies endorsed or supported its products or services.