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
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
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 next time someone thinks about crossing SpongeBob
SquarePants, we caution them with this little ditty. Go ahead and
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
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