Makers of 'Crab Fries' sue for trademark infringement

A Delaware company that makes and distributes a trademarked brand of seasoned French fries to a popular Philadelphia restaurant and bar has filed a federal infringement claim against a Maryland eatery, claiming the defendant has fraudulently marketed the plaintiff’s product at its own restaurant.

Philadelphia attorney Gavin P. Lentz, of the firm Bochetto & Lentz, P.C., filed the civil suit Oct. 27 on behalf of CPC Properties, Inc., of Wilmington, DE.

The defendant named in the lawsuit is Westminster, Md.-based New York J&P Pizza.

According to the complaint, CPC Properties, which has continuously used its Crab Fries trademark in connection with its seasoned French fries since 1978, in July of this year discovered the defendant’s use of the “infringing marks.”

In late July, soon after discovering the alleged infringement, the plaintiff sent a cease and desist letter to the defendant, to stop the restaurant from selling any and all variations of the Crab Fries mark, the lawsuit states.

When the defendant failed to respond to the letter, the plaintiff’s counsel again sent a follow-up cease and desist order, which was also ignored, the suit claims.

“Defendant’s recent roll-out of the Infringing Mark in connection with the seasoned French fries and related services can only been seen as a willful attempt to palm off Plaintiff’s good will in its Crab Fries mark, and as a blatant attempt to create consumer confusion,” the lawsuit states. “Defendant’s adoption and use of the Infringing Mark in connection with the restaurant services and seasoned French fries has caused and is likely to cause confusion, mistake or deception as to source, association, affiliation or sponsorship of its goods and services.”

The lawsuit alleges that all such conduct by the defendant was, and continues to be, in bad faith, willful and deliberate and a “knowing violation of the law.”

“Defendant adopted the Infringing Mark in a willful attempt to copy Plaintiff’s Crab Fries mark and to trade on and injure the valuable good will and business reputation associated with the Crab Fries mark,” the complaint states.

Since the late 1970s, CPC Properties has offered its famous Crab Fries at various Chickie’s & Pete’s restaurants throughout the Philadelphia and South Jersey regions, the lawsuit states. The food product is also offered at the Citizens Bank Park sports stadium in Philadelphia, and is a favorite among bar-goers and sports fans in and around the Southeastern Pennsylvania region.

The suit claims that the plaintiff has sold millions of dollars worth of Crab Fries since the product’s inception, and that it has spent millions more promoting the menu item.

“Use of the Crab Fries mark for seasoned French fries is exclusive and unique to Plaintiff and its licenses,” the lawsuit states. “Crab Fries has not recognized significance in the food industry other than as a source identifier for goods and services emanating from Plaintiff.”

The lawsuit accuses the defendant of infringing a federally registered mark. Violations of federal unfair competition and false designation of origin under the Lanham Act, unfair competition, and injury to business or reputation are also listed in the complaint.

CPC Properties seeks judgment in the form of actual damages, punitive damages, treble damages, attorney’s fees and declaratory judgment.

The plaintiff also seeks to have the defendant barred from continuing to make and sell the trademarked product.

A jury trial has been demanded.

The federal case number is 2:11-cv-06731-CDJ.