UNITED STATES DISTRICT COURT SOUTHERN ... - Nymag

Case 1:09-cv-21893-WMH Document 16 Entered on FLSD Docket 07/31/2009 Page 13 of 24
further allege that “[i]t is unlikely that such a famous and diverse group of people has ever been
brought together before, or since, to commemorate such an event. No restaurant has ever
amassed such a remarkable international clientele.” (Compl. 32.) Plaintiff goes so far as to
allege that Mr. Chow is the “gathering places of intelligentsia, celebrities, artists, [and] world
leaders . . .” (Compl. 34.) It should therefore come as no surprise to Plaintiffs that their
“intelligentsia” and “world leaders” are highly sophisticated customers whose purchasing
decisions for Plaintiffs’ “Chinese fine dining” would classify them as “discriminating customers”
and are less likely to confuse Plaintiffs’ Mr. Chow with another restaurant. Clearly, the wellpled
allegations of the Amended Complaint demonstrate the outstanding degree of customer care
and therefore dispel any likelihood of confusion.
E. Good Faith Intent
“Disclaimers are a favored way of alleviating consumer confusion as to source or
sponsorship.” Consumers Union of U.S., Inc., v. Gen. Singal Corp., 724 F.2d 1044, 1063 (2d
Cir. 1983). “Although a disclaimer cannot insulate [a defendant] from liability, it indicates good
faith use of the service marks and weighs in [a defendant’s] favor.” Bihari v. Gross, 119 F.
Supp. 2d 309 (S.D.N.Y. 2000). Here, Plaintiffs readily admit that Philippe uses disclaimers to
dispel any potential confusion based on Chef Philippe and Michael Chow’s common last name:
“Defendants occasionally offered a disclaimer that Defendant Chau, now going by the name
“Chow,” was “no relation” or “not related to” Mr. Chow. . . .” (Compl. 59). No matter how
Plaintiffs try to “spin” this well-pled allegation, the admission that Philippe disclaimed any
possible confusion emphasizes his good faith intent and weighs this factor strongly toward
Philippe. 5
F. No Alleged Evidence of Actual Confusion
5 Furthermore, “[a] new company formed by former employees can properly put out a press
release stating the founders are “former” employees of the named company.” BIEC Int’l, Inc. v.
Global Steel Servs., Ltd., 791 F. Supp. 489, 534 (E.D. Pa. 1992). Plaintiffs allege that Chef
Philippe advertised that he is “Philippe Chow of the famed MR CHOW restaurant” and argues
that this is somehow improper. (Compl. 59.) Plaintiffs’ argument has been flatly rejected by
federal case law. BIEC Int’l, Inc., 791 F. Supp. at 534. In fact, Plaintiffs readily admit that
Philippe worked for Plaintiff over 25 years. (Compl. 55.) It is entirely proper for Philippe to
advertise that he was a loyal employee of Plaintiffs’ restaurant where he honed his craft.
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RICHMAN GREER, P.A.
Miami • West Palm Beach