Phelan Holdings Inc., owner of Pinchers Crab Shack, a small seafood restaurant chain in Florida, has sued Wendy’s over its use of the slogan “You Can’t Fake Fresh.”   According to the Complaint, filed this week in U.S. District Court in Fort Myers, alleges those four words are worth somewhere around $2 million.

Pinchers registered the name with the USPTO in February of 2010 and has been using the name since 2004.

Wendy’s use of the slogan is part of its recent campaign that touts the freshness of the restaurant’s offerings.

Pinchers also alleges that Wendy’s use of a second slogan “You can’t fake real” (which, at least to me, seems a little redundant) constitutes an infringement of its mark as wel  Here, the marks themselves are identical, or in the case of Wendy’s second allegedly infringing mark, they are at least very similar.  This obviously works in Pinchers favor.

The big question will be how similar/different are the two restaurants’ respective services and how much care would likely be exercised by the consumers here.   There is probably something to Wendy’s likely argument that the restaurants occupy different markets.  As Rene Dial over at TacticalIP notes, he doesn’t see a likelihood of confusion “unless Wendys decides to start seling crabs at their restaurant.”

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