Pearls before Eds

Andrew Raff
July 2, 2007

Here is the complaint in the Pearl Oyster Bar v. Ed's Lobster Bar suit:
Powerful Katinka, Inc. v. McFarland

Ed' Lobster Bar copies each and every element of Pearl. Ed's Lobster Bar's meny consists almost entirely of dishes created by Charles that currently appear or have appeared on the Pearl menu or which were prepared for special events while McFarland worked at Pearl. On information and belief, Ed's Lobster Bar prepares and plates the dishes in the same manner as Charles does at Pearl. Moreover, Ed's Lobster Bar serves Pearl's food in a virtually identical setting. Ed's Lobster Bar totally mimics the look and feel of Pearl as well in its color scheme, eschewing of reservations, lighting, bar area, seating, service style, and streamlined menu and wine list. Even the batroom and wait stations at Ed's Lobster Bar are clones of Pearl's.

The look and feel claim is based in §43(a) of the Lanham Act. The complaint details the similarities in trade dress:

  • in a city filled with a variety of restaurant layouts, sizes and shapes, defendants have selected a long, thin space almost exactly like Pearl's.

  • a long bar with 20+ seats topped with a white marble countertop

  • a long white counter on the wall opposite the long bar to maximize seating

  • wheat back barstools

  • silver colored pendant lights above the bar, a mirror being the bar and a chalkboard

  • a simple silver-colored beer tap at the center of the bar

  • wood flooring stained the same color

  • wainscoting around the entire dining room, waist high

  • gray wainscoting, sea grass green bathroom doors and accents, cream/white walls, a cream/white painted brick wall and silver/silver-colored accents around the room

  • long thin wall cabinets installed behind the bar

  • the Pearl's bathroom "down to the vanity"

  • a window seat in the front window

  • the same silver double coat hooks under the bar

  • "understated artwork referring to Maine and piscine themes"

  • a wait station consisting of two wheat straw back chairs next to a wooden cupboard painted the same color as the wainscoting and containing glassware, coffee mugs and condiments

  • Deliberate omission of expensive menus and wine lists changed daily or weekly, tablecloths, bartenders and busboys, designated hosts, reservations, large parties, host station, and uniformed staff with rigid staff assignment to particular responsibilities

  • place settings are identical-- with a cloth napkin, simply folded, topped with a knife and fork, a packet of Westminster Oyster Crackers and menu/wind (sic) list 'placard' menus

  • service "with an air of informality and conviviality"

The complaint alleges that there is actual consumer confusion, citing a number of reviews from the internet. In addition, menus and photos of Pearl, Ed's and competing restaurants are attached to demonstrate that it is possible to create a different restaurant based on the same inspiration.

One of the interesting aspects of the complaint is the argument that a Sous chef is a fiduciary of the restaurant. McFarland had asked Charles to become a partner and open more incarnations of Pearls, and she had declined. But by taking the menu, style and recipes from Pearl and using them to create a competing restaurant, Pearl alleges that McFarland breached his duty as a fiduciary of the restaurant.

Previously: Lobster Rolls and the Lanham Act


Copyright 2003-2007
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