Midterm Memo for LRW I

MEMORANDUM

To: Dr. Derek Fincham

From: Rene Schwartz

Date:  March 8, 2025

Re:   Bobs Burgers & Brew — Likelihood of Confusion

QUESTION PRESENTED

Under the Lanham Trademark Act, did Devin Thibodeaux infringe upon Loren Bouchard’ Bob’s Burgers trademark when he opened Bob’s Burgers & Brew, a pop-up restaurant mimicking the show’s fictional restaurant interior that offers food mentioned in the show, makes reference to the show’s characters in its marketing, and has caused actual confusion from customers; or if sued, does he have a viable defense based on parody or fair use?

BRIEF ANSWER

Yes, Thibodeaux likely infringed upon the Bob’s Burgers trademark under the Lanham Act. The likelihood of confusion analysis suggests a high risk of infringement due to 1) the strength of the Bob’s Burgers trademark, 2) the similarity of the marks, and 3) instances of actual consumer confusion. Given the strong similarities between Bob’s Burgers & Brew and the branding of the animated show, as well as the commercial nature of the pop-up, the likelihood of a successful parody defense appears low.

Artist's Rendering

20th Century Fox Broadcasting Co., Fair use

FACTS

Loren Bouchard’s Bob’s Burgers is a widely recognized animated television series that has aired since 2011, inspiring merchandise, comic books, soundtrack albums, and a feature film. While the Bob’s Burgers mark has never been licensed for a physical restaurant, its branding is closely tied to food culture, featuring a fictional burger shop, pun-based burger names, and a distinctive aesthetic.

In August 2024, Houston restaurateur Devin Thibodeaux launched Bob’s Burgers & Brew, pop-up restaurant marketed as a “fan-made tribute.” The restaurant’s branding includes a bearded, apron-clad man in front of a purple two-story building, checkered floors, red barstools, and a chalkboard menu with pun-based burger names. The waitstaff wear name tags and exhibit the mannerisms of characters from the show. Social media promotions reference elements from Bob’s Burgers, including the tagline “Our burgers are better than Jimmy Pesto’s.” Some customers have expressed confusion in reviews and social media posts, believing the pop-up was officially affiliated with the show.

Bouchard and 20th Television Animation issued a cease-and-desist letter, arguing that Bob’s Burgers & Brew misleads consumers and infringes on their trademark. Thibodeaux maintains that his pop-up is a parody and does not use official logos, character names, or images.

DISCUSSION

The restaurant’s branding and thematic elements almost certainly constitute trademark infringement under the Lanham Act because 1) the strength of the Bob’s Burgers trademark, 2) the similarity of Bob’s Burgers & Brew to the Bob’s Burgers trademark, and 3) the actual confusion customers have experienced.

Under the Lanham Act, trademark infringement occurs when a person “misrepresents the nature, characteristics, [or] qualities of another mark owner’s commercial activities.” 1125(a)(1)(B)(West).

Moreover, under the Lanham Act, “Any person who, on or in connection with any goods or services … uses in commerce any word, term, name, [or] symbol, which is likely to cause confusion … shall be liable in a civil action [by mark owner if they believe their mark] is likely to be damaged by such act.” 15 U.S.C.A. § 1125(a)(1)(A)(West).

Further under the Lanham Act, “[a]ny fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with … parody” is an exception under the act. 15 U.S.C.A. § 1125(c)(3)(A)(ii) (West).

Courts assess the likelihood of confusion through multiple factors, hereafter referred to as the "digits of confusion." In the Fifth Circuit, these factors include the strength of the senior user’s mark, the similarity between the marks, the defendant’s intent, and actual confusion, among others. Viacom Int’l v. IJR Capital Inv., L.L.C., 891 F.3d 178, 192 (5th Cir. 2018).

This memo will analyze four digits of confusion: 1) the strength of the Bob’s Burgers trademark, 2) the similarity of the Bob’s Burgers trademark to the Bob’s Burgers & Brew trademark, 3) actual confusion by customers of the restaurant, and 4) strength of a parody defense.

1.     Strength of the Senior Trademark

The first digit of confusion — strength of the Bob’s Burgers trademark — weighs in favor of the show’s creator, as the mark is well-established and widely recognized in the entertainment and merchandising industries.

The strength of a trademark is assessed based on its distinctiveness and commercial recognition with stronger marks receiving greater protection. Id. at 193. “The stronger the mark, the greater the protection it receives because the greater the likelihood that consumers will confuse the junior user's use with that of the senior user.” Elvis Presley Enters., Inc. v. Capece, 141 F.3d 188, 201 (5th Cir. 1998). A mark’s commercial strength is demonstrated through long-term use, sales, advertising, and consumer recognition. Id. A registered mark becomes conclusive evidence of a registrant's exclusive right to use a mark after five consecutive years of continuous use in commerce. Id. at 194.

In Elvis, the court considered the issue of whether The Velvet Elvis bar’s name, décor, and advertising misled potential consumers into believing it was officially associated with or endorsed by Elvis Presley Enterprises (EPE), the company that owned the trademark rights to Elvis Presley’s name and likeness. Id. at 193. In Elvis, the parties agreed that EPE's marks have longstanding “worldwide fame and almost instantaneous recognition,” leading the courts to find that EPE's mark was strong. Id. at 201. The court also held that EPE’s worldwide consumer recognition deserved it strong protections. Id. at 201. Despite the defendant’s argument that the bar’s name was intended as a parody and not to deceive customers, the court found the argument unpersuasive and held in favor of EPE. Id. at 200, 207.

Like Elvis Presley’s likeness looms larger than the mere music scene, Bob’s Burgers has built strong commercial recognition beyond the television show. Just as Elvis is a cultural figure, Bob’s Burgers is a well-recognized award-winning national television show that’s been running for 14 years and counting. Like EPE voluntarily licensed its mark and agreed to be affiliated with merchandising, entertainment, and food-related licensing, the Bob’s Burgers franchise also licenses its mark to a carefully curated selection of other products, such as cookbooks, soundtrack albums, and a feature film. Further, just as Elvis has been a household name since the 1960s and ‘70s, leading the court to reason EPE deserved strong mark protections, you’d be hard pressed to find even a handful of people who don’t know Bob’s Burgers as it has been in continuous commercial use for 14 years. The criteria the Fifth Circuit might consider when determining the strength of the Bob’s Burgers trademark will mirror Elvis, serving as demonstrable evidence of the high likelihood that Bouchard has exclusive right to the mark. With its instantly identifiable style and distinct commercial recognition, consumers who see this experience and advertising will easily mistake the direct Bob’s Burgers references for the real deal — thus the mark is entitled to a high level of protection.

Because Bouchard’s Bob’s Burgers mark is so strong, Thibodeaux should tread carefully when developing the restaurant’s branding, advertising, and overall commercial enterprise to ensure customers will understand that the restaurant is not affiliated with the show. The strength of the Bob’s Burgers trademark is well-established and widely recognized in the entertainment and merchandising industries and thus necessitates stronger protection.

2.     Similarity of the marks’ products and services

The similarity between Bob’s Burgers (senior mark) and Bob’s Burgers & Brew (junior mark) favors Bouchard, as the names, branding, thematic elements, and associations with the food industry lead to a high likelihood of consumer confusion regarding the restaurant’s affiliation with the original franchise.

When considering the similarity between two trademarks, the more similar the products and services, the greater the likelihood of confusion. Viacom, 891 F.3d at 193. Courts assess similarity in terms of sight, sound, and meaning. Elvis, 141 F.3d at 201. When products or services are noncompeting, the confusion arises from sponsorship, affiliation, or connection. Id. at 202. A risk of confusion arises when the junior user’s services are in a market that the senior user would naturally expand into. Id. If consumers believe, even though falsely, that the goods marketed by the junior mark-holder is likely to expand into the market for the type of goods marketed by the senior mark-holder, confusion may be likely. Id.

In Elvis, EPE owned the rights to Elvis Presley's name and likeness, licensing various commercial products and entertainment services related to the renowned singer. Id. at 191. Defendant Capece operated a bar called "The Velvet Elvis," which incorporated Elvis-themed décor (bust of Elvis), memorabilia (magazine photographs of Elvis), and signage and advertisements reference Elvis (King of Dive Bars). Id. at 191, 192. Inside the bar, there were velvet paintings of Elvis, bar menu items and decor included other Elvis references (Your Football Hound Dog). Id. at 192. The Fifth Circuit ultimately held that the bar’s use of Elvis’ likeness in its branding and menu items, combined with its marketing references to the singer, created a likelihood of confusion among consumers. Id. at 207. Although the defendants argued that the bar’s theme was intended as a humorous tribute rather than an attempt to mislead consumers, the court found that both parties were engaged in entertainment-related services, with EPE having an established history of licensing Elvis-themed venues and attractions. Id. at 201. Because EPE had a strong presence in the entertainment and hospitality industries, including Graceland, Planet Hollywood, and the Hard Rock Café, the court reasoned that consumers could reasonably assume a connection between The Velvet Elvis and EPE’s officially licensed Elvis-themed ventures. Id. at 202. Further, even though EPE didn’t currently operate a competing Elvis-themed bar, the offerings and services are similar enough that it would be reasonable EPE would expand into the bar market, which would cause confusion as to source or affiliation. Id.

Here, like in Elvis, confusion will arise by Bob’s Burgers & Brew perfectly mirroring the look and feel of the show — or how it would look if the markholder decided to expand into the restaurant industry. In Elvis, the Fifth Circuit determined that a themed bar using the singer’s name and likeness could mislead consumers into believing it was officially affiliated with EPE, given its history of licensing entertainment and hospitality services. Here, Bob’s Burgers & Brew operates in a directly related industry — food services — and mimics myriad distinctive elements of the fictional Bob’s Burgers restaurant, including its restaurant name, décor that matches the show (barstools, checkered floor, logo that looks like Bob Belcher), branding looks a lot like the show (faux-Belcher newsprint in fry baskets), puns and jokes from the show (Gene’s Sticky Keys soda), references to the main and secondary characters from the show (waitstaff wear name tags from show characters), burgers with the same names as they appeared in episodes of the show (Baby you can chive my car, burger). Like EPE in Elvis didn’t own or license any bars, Bouchard doesn’t currently own or license any restaurants. In analogy, to the Fifth Circuit’s reasoning it was realistic that EPE could expand into the bar market, it is a natural next step Bouchard would open Bob’s Burgers-themed brick-and-mortar restaurants.

Because Thibodeaux’s restaurant mimics key elements of Bob’s Burgers and operates within the food industry — a market that the Bob’s Burgers brand could naturally expand into — the similarity between the marks’ services increases the likelihood of consumer confusion.

3.     Actual Confusion

Evidence of actual confusion favors the show’s creator, as multiple customers have mistakenly believed the pop-up was officially affiliated with Bob’s Burgers, as evidenced in online reviews and social media posts.

Evidence of actual consumer confusion is one of the most persuasive factors in determining a likelihood of confusion in trademark infringement cases. Viacom, 891 F.3d at 197. A plaintiff can establish actual confusion by presenting individual instances of anecdotal evidence of consumer misunderstanding. Id. Consumer assumptions alone, even without direct misrepresentations by the defendant, have been deemed sufficient to show actual confusion. Elvis, 141 F.3d at 202. Third parties cannot capitalize on the goodwill and reputation of the senior mark by naming a restaurant the same as a restaurant featured in a TV show without providing sufficient context to prevent consumer confusion. Viacom, 891 F.3d at 197.

In Viacom, the Fifth Circuit considered a survey that showed a number of consumers mistakenly believed The Krusty Krab restaurant was officially associated with the SpongeBob SquarePants television series. Id. at 182, 183. Viacom introduced evidence showing that people searching online for The Krusty Krab were misdirected to the defendant’s restaurant and that social media users and potential customers assumed an official connection. Id. at 183. The Fifth Circuit held that the defendant’s The Krusty Krab restaurant created an impermissible likelihood of confusion in the minds of consumers about the connection to Viacom’s SpongeBob SquarePants affiliation or sponsorship. Id. at 198.

Viacom is a remarkably analogous to our predicament: in both, business owners opened restaurants with the same name as a fictional restaurant in a popular tv show — in that case The Krusty Krab from SpongeBob SquarePants and in our case Bob’s Burgers from Bob’s Burgers. Wherein Viacom, plaintiffs used the results of a survey to show actual customer confusion because The Krusty Krab had not officially opened, here, the evidence of actual confusion is even stronger because Bob’s Burgers & Brew is commercially open for business. Paying customers of Bob’s Burgers & Brew have demonstrated the confusion through online reviews and social media posts with captions like “finally eating at Bob’s Burgers.” Similar to Viacom, where users searching for The Krusty Krab mistakenly associated it with Viacom’s franchise, potential customers of Bob’s Burgers & Brew who do a quick Google search would easily find the social media posts and reviews that further perpetuate the confusion.

Given that the Fifth Circuit has set a low threshold for proving actual confusion, even a handful of customer reviews expressing mistaken belief strongly supports a finding of likely confusion in this case.

4.     Parody Defense

If Bouchard sues Thibodeaux, any potential parody argument will be too weak to overcome the other digits of confusion factors heavily weighing toward Bouchard — because the junior mark is too similar and indistinguishable from the senior mark to be a protected parody.

Parody, defined as an artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule, is a factor courts can use to determine whether a likelihood of confusion exists, but in itself is not an affirmative defense to trademark infringement. Lyons P’ship v. Giannoulas, 179 F.3d 384, 388 (5th Cir. 1999). The Fifth Circuit has held that confusion arising from a parody is not a valid affirmative defense to a trademark infringement claim but rather an additional factor that should be considered with the other digits of confusion factors. Id. at 389. Courts have accepted parody defenses where the alleged infringing work is distinguishable enough from the original, such that consumers recognize it as a humorous reference rather than a direct affiliation. Id. The intended audience is an important factor in determining whether a performance qualifies as a parody. Id. at 388.

In Lyons, the defendant used a character resembling the children’s entertainer Barney the Dinosaur in a commercial setting, dressing up a mascot in a purple dinosaur costume for promotional events aimed at adult audience members. Id. at 387. The Barney character starts off mimicking the original children’s television character Barney but it quickly turns into a dancing contest between him and another mascot that ends with a very adult prank. Id. While the defendant’s Barney-like character looked and danced like Barney, the character made no other references to the Barney world such as incorporating Barney’s friends from the show.   Id. at 388. Giannoulas suggests Barney was a joke target, and he referenced him the minimum necessary to create the image in his audience’s minds — and there was no proof the audience for the event was the same as the audience for the original tv show (young children). Id. The court held that, despite similarities, the defendant’s use was a clear parody because it exaggerated Barney’s characteristics to create a humorous and satirical effect rather than causing consumer confusion. Id. at 389. Because of this distinction, the Fifth Circuit accepted the parody defense and held in favor of the defendant. Id. at 391.

Unlike in Lyons, Bob’s Burgers & Brew does not create enough distance from the original Bob’s Burgers likeness to constitute a parody. The biggest difference is Thibodeaux has perfectly replicated the Bob’s Burgers name, restaurant concept, look, feel, and branding in a way that mirrors rather than satirizes the show. The restaurant incorporates a bearded character resembling Bob Belcher, aesthetic mirroring the appearance the show, and an interior design and menu that mimics the fictional restaurant’s design and food. The restaurant’s waitstaff wear name tags and act like they are characters from the Bob’s Burgers universe — which in Lyons, the defendant was careful to omit any other characters from the Barney universe. Further, the audience for the controversial entertainment in Lyons was adults — not children, whereas here, the audience for the restaurant would be the same audience as the fans for the show — people who like Bob’s Burgers.

Thus, if Bouchard sues Thibodeaux, any potential parody argument will be too weak to overcome the other digits of confusion factors heavily weighing toward Bouchard — because the junior mark is too similar and indistinguishable from the senior mark to be a protected parody.

FINAL CONCLUSION

Because the strength of the Bob’s Burgers trademark is high, the marks are highly similar, and there is evidence of actual confusion, the likelihood of confusion under the Lanham Act is strong. If Bouchard sues Thibodeaux, Bouchard has a strong case based on brand recognition, marketing, and consumer confusion. Additionally, a potential parody defense would be weak given the commercial nature of the pop-up. Therefore, Bob’s Burgers & Brew should change its name to avoid further legal liability.

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