Earlier today, Mr. Chow filed an amendment to its lawsuit against Philippe, accusing the restaurant of sending a spy to infiltrate its kitchen, and now Philippe has fired back with a motion to dismiss the lawsuit. Lawyers believe that since Mr. Chow engaged in “complete radio silence for almost four years” before bringing the case, its ten claims of copyright violation are “barred by laches,” meaning that the complaint was excessively and inexcusably delayed. The document also argues that the “Chow” trademark is “extraordinarily weak,” since the U.S. Patent and Trademark Office approved 53 trademarks using the word “Chow” for “restaurant use,” and there are no fewer than 36 Chinese restaurants in New York City and Miami using Chow in their names.
Interestingly, the document sites a legal precedent indicating that “the higher the caliber of the restaurant, the less likely there will be legal confusion” (meaning, judges take into account that the “discriminating purchasers” of high-end products are less likely to be fooled by knockoffs). The document cheekily argues that if it’s true, as Mr. Chow’s complaint states, that the restaurant is visited by the “intelligentsia” and “world leaders,” its customers should have no problem deciding where to eat. (Besides, it argues, there is no evidence of marketplace confusion.)
The motion also seeks to throw out counts related to the misappropriation of trade secrets, arguing that a three-year statue of limitations has passed, and in any case Mr. Chow’s complaint failed to indicate how, exactly, its secrets differ from those of any other Chinese restaurant, and how exactly it has tried to keep them confidential.
There’s much more in the document (do read it), including photographs and illustrations showing the differences between the restaurants’ interiors and their logos (the document also reveals that Philippe has at various times employed disclaimers to distinguish it from Mr. Chow), but as far as plot twists go, the best part deals with those recent accusations of corporate espionage:
The proposition that Philippe, who has operated a successful restaurant business around the country for nearly four years, sent a “covert” spy, who readily identified himself as such, to Plaintiffs’ place of business for purposes of unfair competition, defies all logic and is simply false. As Plaintiffs are well aware, the individual who came to Plaintiffs’ restaurant was a gentleman by the name of Man Choy (“Peter”). Peter went to the restaurant to say hello to his friend of over forty (40) years, Ng Jai Chung (“John”). A W Hotel Security Guard walked Peter into the restaurant. He did not trespass. When John recognized his old friend Peter, John was happy to see him. Peter and John spoke for a few minutes, exchanged cell phone numbers and promised to continue to keep in touch. After the conversation, Peter walked away from the restaurant. He was in no way escorted out of the restaurant as alleged.
Peter and John met each other in Hong Kong in the 1960s. They remained friends when they were both working in London in the 1970s and 1980s. Even when Peter moved to the United States in the 1980s, Peter and John continued their friendship and kept in touch over the telephone. Approximately five years ago, John traveled from London to San Diego to pay respect to Peter’s brother who was dying of a terminal illness. Peter’s visit to Plaintiffs’ restaurant was for personal reasons and for nothing more. Peter did not visit Plaintiffs’ restaurant with the knowledge or consent of Philippe. Indeed, the pretext of Plaintiffs’ highly inflammatory and groundless claims is clear: they are nothing more than a continuation of Plaintiffs’ improper use of these court proceedings as ongoing publicity for the imminent grand opening of its new restaurant in Miami Beach.
Hmmm, so if Philippe didn’t send Peter into John’s kitchen, how did they know the guy’s name as well as all these details about their relationship? That question, and many more, will no doubt be answered in next week’s episode …