Month: November 2014

With former UVA scholar Edgar Allan Poe dead now since 1849, you might think everything about him is in the public domain. Not so. Just ask the owner of Poe’s Public House on the Corner, who may have to change his restaurant’s moniker after he received letters warning him that the name is taken.

Joe Fields bought the former No.3 in May and got a new sign for Poe’s Public House at the beginning of the school year. In early November, he received cease-and-desist letters that claimed a registered trademark from an attorney representing Poe’s Tavern in Sullivan’s Island, South Carolina and Atlantic Beach, Florida.

“I was in shock,” said Fields. “I was sort of thinking it was some kind of hoax.”

Fields is a first-time restaurateur who spent the summer starting his new, Southern-style, Poe-themed eatery. He said his lawyer has advised him to change the name, and that means a new sign, menus and lost advertising that will cost him between $3,000 and $4,000.

“It hasn’t been easy,” he said. “We’re not rolling in money.” But things seemed to being going well, he said, “until this monkey wrench.”

Trademark registration gives the holder rights to a name throughout the United States. Even though the Poe’s establishments are in different states, because they both serve food and beverages and have similar names, customers could confuse them, according to a trademark attorney. Fields says he was advised to come up with a new moniker “unless we want to go to federal court.”

Fairview Dome LLC registered the Poe’s Tavern trademark with the U.S. Patent and Trademark Office in 2012, after an earlier 2004 application for the mark had lapsed in 2006. Russell Bennett is a co-owner of the two Poe’s Taverns, and has just gotten the go-ahead for another Poe’s Tavern in Wrightsville Beach, North Carolina.

“We think the similarity of Poe’s Public House’s name, logo, signage and concept to ours is likely to cause confusion between the two restaurants,” said Poe’s Tavern co-owner Riddick Lynch in an e-mail. “Poe’s Tavern has also been considering Charlottesville and other Virginia cities as potential markets for a number of years. This is the first time we have sent a letter like this.”

Both the Tavern and the Public House use Poe’s doleful visage on their websites and menus. And even though they’re not in the same state, there’s a legal argument to be made that consumers might think the two are affiliated, explained UVA Law Professor Margo Bagley.

Other factors a court would consider, she said, include the similarity of the marks, of the goods and services and of advertising, as well as the defendant’s intent and actual consumer confusion.

“I would be surprised if these were the only Poe’s restaurants in the country,” said Bagley.

And indeed, the owner of Poe’s Pub in Richmond said the Poe’s Tavern lawyers have not contacted him. “I’ve been here 20 years,” said Mike Britt. “It was already named Poe’s Pub when I bought it. I’ve been to Poe’s Tavern on Sullivan Island. It’s nice. But I was here first.”

“Timing is very important,” said Bagley.

And that was a factor when the lawyer of legendary film director Francis Ford Coppola sent a stern letter to Michael and Tami Keaveny (she’s arts editor at C-VILLE Weekly), owners of tavola restaurant in Belmont, advising them that Coppola held the trademark to “a tavola,” which means “to the table” in Italian. Coppola’s restaurant, Rustic, in Geyserville, California, uses the term to describe its family-style service.

“We came up with our name before them,” said Michael Keaveny, who opened the restaurant in 2009. The Coppola attorney warned Keaveny not to expand beyond one restaurant, not to try to trademark the name, not to offer any other products or services using the tavola name and not to change the style of its logo.

“It came across to me as bullying,” said Keaveny, whose favorite movie is The Godfather, a Coppola classic. “This guy is supposed to be an ambassador of Italian culture in America, and he’s coming after a mom-and-pop Italian restaurant. And he doesn’t own a restaurant named ‘Tavola’.”

Tavola Italian Kitchen in Novato, California, about 50 miles from Coppola’s Rustic restaurant, countersued when the iconic director went after its use of Tavola. “[T]he name of a type of dining experience cannot be trademarked,” said Tavola’s lawyer, Robert Helfing, in an e-mail. “That was our point. It’s as if some restaurant claimed exclusive rights over ‘family-style dining,’ which is what ‘a tavola’ means. Some might call the lawsuit trademark bullying. I think Coppola’s people were upset because both restaurants were located along the same California freeway, albeit an hour’s drive apart.”

The lawsuit was settled in 2013. Tavola Italian Kitchen in Novato closed its doors in January 2014.

Restaurants with the same name can and do coexist. Sakura Sushi and Noodles on 14th Street and Sakura Japanese Steakhouse in Hollymead Town Center both operated in Charlottesville for about eight years. Sakura Sushi predated the steakhouse chain, but the sushi restaurant has since gone out of business.

Bagley recommends that businesses trademark their names to provide nationwide notice of their rights. If someone registers a trademark that another business already was using for similar goods or services, the first user has five years to challenge the registration for confusing similarity, she said.

Brian Poe is the chef and owner of several restaurants in Boston, including Poe’s Kitchen at the Rattlesnake, and he says the eponymous kitchen is named for his food, not the author—even though E.A. Poe was born in Boston and the city recently erected a statue of him.

Poe has not received a letter ordering him to stop using the name, and in an e-mail, said he has a Poe’s Tavern baseball hat and would welcome a Poe’s Public House T-shirt and Poe’s Pub bumpersticker. “I love all things ‘Poe’,” he enthused.

But apparently, not everyone is so enthusiastic about sharing a name.

More than 30 prominent Charlottesvillians, including Delegate David Toscano, City Councilor Bob Fenwick, neighborhood association presidents and West Main Street business owners, have signed a letter to the Virginia Department of Alcoholic Beverage Control demanding that the West Main Street store be moved because of the unsavory behavior it brings to the neighborhood.

“The store is a public menace in its present location,” wrote Michael Signer, the local attorney and president of the Fifeville Neighborhood Association who is leading the effort to force the store out of the West Main corridor when its lease expires on May 31, 2015. The letter cites more than 1,500 criminal complaints in the two blocks surrounding the store since 2011, and in an interview, Signer said he has witnessed numerous instances of public urination, drug dealing and blocking public access when he’s walked in the area with his wife and children.

The ABC has met four times with the community about its concerns, according to spokesperson Becky Gettings, and has made some changes, such as additional security cameras at the store, increased trash pickups and repackaging popular mini-bottles into 10 packs rather than singles.

That didn’t satisfy critics. “The last straw came in October when the ABC refused additional reasonable measures we requested, including putting a security guard on premises and establishing active new programs to protect the large vulnerable populations at the three shelters within walking distance (the Haven, the Crossings and the Salvation Army),” said Signer in the letter. “That’s when we decided enough is enough.”

Charlottesville Police Lieutenant Steve Upman said the numbers police sent the community leaders are raw data, and include EMS and fire reports, as well as incidents that are called in but are considered unfounded or unverified.

“We have no indications that the ABC store is responsible for the crimes that take place in the two-block area,” said the ABC’s Gettings, who said statistics from the Charlottesville police show that complaints of public drunkenness have decreased by almost half in 2014 compared to the prior three-year average.

Not everyone supports the store’s ouster.

“Where are local people who don’t have cars supposed to go?” asked Mel Walker, owner of Mel’s Cafe on West Main and a lifelong area resident who is concerned about people moving in from other places and trying to change the neighborhood. “There will always be people who are homeless and who like to drink,” he said. “If you don’t like that, you should move to the suburbs.”

Blue Moon Diner owner and letter signer Laura Galgano said she’s had issues with littering and public drunkenness outside the restaurant, and she no longer allows public use of the diner’s bathroom after having to call a plumber multiple times. She has also long been frustrated by ABC patrons using her restaurant’s parking lot.

“I think gentrification may be part of the reason” people want the ABC store closed, she said, “but it’s not all the reason. I don’t see us as a gentrifying organization. For me, it’s the abuse of my parking lot.”

City Councilor Kristin Szakos is aware of the gentrifying aspects of high-end shops, and the new hotel and high-density residential structures going up on West Main that can push people out. “On the other hand,” she said, “liquor stores have always targeted low-income neighborhoods where people struggle with addiction. They’re there for a reason.”