If you’re not first, you’re last. Rick’s Cabaret was the first to open a restaurant with the name Ricky Bobby – but will Sony Pictures have the last laugh?
Let’s get the background first. In the movie Talladega Nights, Will Ferrell played Ricky Bobby, a successful race car driver who just “wants to go fast.” Fast forward a few years later and Rick’s Cabaret International Inc. (RCI) decides to open a restaurant named Ricky Bobby Sports Saloon and Restaurant (Warning: the website features scantily clad waitresses, in case you’re worried what your co-workers or spouses might think).
First, it is pretty obvious the restaurant is based off Will Ferrell’s Ricky Bobby character from Talladega Nights. The racecar in front of the restaurant (left) is nearly identical to the one featured in Ricky Bobby’s final race (right):
At least they had the sense to change the number, I guess.
To some extent, the Ricky Bobby Sports Saloon is merely playing off the Southern NASCAR fan stereotype, similar to the archetype after which Ricky Bobby was likely modeled. But if RCI merely wanted to play off the stereotype, why name it Ricky Bobby’s Sports Saloon? Why put a near exact replica of the car in front of the restaurant?
It also doesn’t help when a spokesman for the company was paraphrased by the Dallas Observer newspaper as saying “with the movie being trademarked and all, [we] can’t use direct quotes or anything from the movie. But since proper names can’t be trademarked, [we] used it.” Let’s hope the quote was paraphrased incorrectly. It is apparent that the owners of RCI intended to profit off the movie by naming the restaurant Ricky Bobby and styling the layout and menu in the persona of the Ricky Bobby character. This is certainly a factor which would weigh in favor of a likelihood of confusion:
Moreover, it has been held that where the evidence demonstrates “that another’s name was adopted deliberately with a view to obtain some advantage from the good will, good name, and good trade which another has built-up, then the inference of [the] likelihood of confusion is readily drawn, for the very act of the adopter has indicated that he expects confusion and resultant profit.” DC Comics, Inc. v. Powers, 465 F. Supp. 843 (S.D.N.Y. 1978)
The lawyers aren’t incorrect. Common law and statutory law both place limitations on the scope of protection granted to personal name marks. But the rule is not as simple as the RCI representative suggests. If it were, McDonald’s would be in big trouble. And something tells me that McDonalds has pretty good protection for its marks. Besides, if RCI truly believed this, they would not have filed a federal trademark application for the name. It is also worth mentioning that in DC Comics, Inc. (quoted above), the court granted D.C. Comics a prelminary injunction against a newspaper from using the name The Daily Planet finding that “the Daily Planet has become so closely associated with the presentation of the Superman story that any use thereof by defendants would create a substantial likelihood of confusion at the consumer level.”
That’s not helpful for RCI, although admittedly the newspaper in that case had also used drawings of Superman and referenced other aspects of the Superman story. RCI’s use of material from Talladega Nights is probably less, but is it still too much?
RCI’s application for RICKY BOBBY SPORTS SALOON was approved for publication and a Notice of Allowance issued, meaning that RCI will get a federal registration. Of course, this merely means that nobody has a prior federal registration or application for a confusingly similar mark. Although it is somewhat surprising that Sony Pictures did not file an opposition. However, they still have time to bring a petition to cancel the mark, should it proceed to registration. Or a lawsuit.
The ultimate question is whether consumers would be deceived somehow as to whether a third party (Sony Pictures in this case) has somehow licensed, endorsed, or is in some other way affiliated with the restaurant. I believe this is where RCI runs into trouble. Consumers have become accustomed to characters from one medium being licensed to other seemingly unrelated products and services. We have Angry Birds fruits snacks, KISS mini-golf, and even video games based on LEGO-versions of Star Wars characters. I think there is a fair amount of licensing for Mickey Mouse, which is technically a proper name, too.
And yes, this licensing extends to restaurants. There are the twin Jimmy Buffet restaurants of Margaritaville and Cheeseburger in Paradise. There was also the transformation of 7-11 convenience stores into Kwik-E-Marts to promote Simpsons: The Movie. Perhaps most concerning is the Bubba Gump restaurant chain that has had great success. Bubba Gump is not just based on a fiction character, but on a fictional company from the movie Forrest Gump. Based on these examples, the restaurant industry certainly seems like it is becoming a zone of natural expansion for the owners of the rights to well-known movies.
Consumers would certainly be justified in assuming that someone the makers of Talladega Nights had endorsed or are otherwise affiliated with the Ricky Bobby Sports Saloon. I won’t go as far to say that Ricky Bobby is doomed. But he might need some help from the Magic Man to get out of this predicament.
Of course, maybe Sony Pictures just doesn’t care. After all, a number of the jokes in the movie were made at the expense of extreme licensing, product placement, and other advertising. And, lest we forget, Ricky Bobby’s signature phrase was Shake and Bake. Now where have I heard that before…