After reading our Flip opening report last month, one commenter wondered, “How long before Richard Blais asks for a name change?” The former Top Chef contestant opened Flip Burger Boutique in Atlanta in December, and is eyeing a New York location. The concepts aren’t complete copycats — Blais does his mad-scientist shtick with items like a shrimp Po’ Boyger, and Bloomie’s spot is more build-your-own burger. But still, there are those similar names. “We have applied for a trademark and they have not,” Blais says. “Our attorneys are looking into this.”
Trademarks cover the immediate geographical area, except where fame is involved, says Ethan Horwitz, an intellectual-property partner at King & Spaulding LLP. “If you’re a local diner and you draw your customers from a one-mile radius, your trademark rights would be in that one mile,” he explains. “If you’re known nationwide, you have a longer reach. The key question with trademarks is: If I see what the defendant is doing, would I somehow associate that with the plaintiff?” According to Horwitz, if the Bloomingdale’s location opened before Blais filed for the trademark, Flip could keep its name. But if the Bloomie’s Flip opened after Blais’s Flip, the former would have to find a new name if Blais decided to open a store in New York.
Bloomingdale’s, which has not applied for a trademark, seemed unconcerned. “Bloomingdale’s has been working on our Flip restaurant concept at 59th Street for more than a year. At the time that we initiated the project we did a name search and Richard Blais’s Flip Burger Boutique did not appear. We do not believe that there is any confusion with our Flip restaurant at Bloomingdale’s and the Flip Burger Boutique in Atlanta.” If Blais does come to New York, expect a court battle to ensue. In the meantime, be grateful there are so many burger restaurants in New York right now that this is even an issue.