Applebee’s Vampire Drink Bites Trademark, Wine Seller Says (1)

Oct. 28, 2019, 3:41 PM; Updated: Oct. 28, 2019, 5:27 PM

Applebee’s Halloween-themed $1 Vampire cocktail promotion is more trick than treat, a wine seller alleged in a trademark lawsuit in a California federal district court.

Vampire Family Brands LLC is suing Applebee’s Restaurants LLC for allegedly infringing its ‘Vampire’ trademarks registered for wine, cocktails, restaurant and bar services, and other food and drink items.

Applebee’s “disparaging” use of the trademarks “will tarnish” Vampire Family’s brand, the company claims in an Oct. 27 complaint filed in the U.S. District Court for the Central District of California. Vampire Family said it has collaborated with Hollywood to work its brand into movies.

The restaurant chain’s willful infringement merits an award of triple the defendants’ profits from use of the mark, Vampire Family said in its complaint. Any profit damages should include food sales because Applebee’s used the Vampire mark as a loss leader to bring people into their restaurants, Vampire Family alleged.

Vampire Family said it first used the mark, registered in 1999, to sell wine in 1988. The company has since expanded its use of the brand and registered it for other beverage and food-related goods.

Vampire Family sued Taco Bell in July for infringing its “Vampire” taco mark through the fast food chain’s Vampire Burritos, fries and sauce, in a case pending in the Central District of California.

The Taco Bell lawsuit let at least one of several franchisees named in the Applebee’s lawsuit know of the Vampire mark, the complaint said. Flynn Restaurant Group owns Taco Bell franchises that Taco Bell parent Yum Brands Inc. said stopped using the mark within days of the complaint, Vampire Family said. Flynn also controls Apple American, operator of 460 Applebee’s and its largest franchisee, according to the complaint.

Vampire Family sent Flynn notice of Applebee’s infringement on Oct. 18, but its failure to respond showed its behavior is intentional, Vampire Family alleged.

Applebee’s “silly marketing” denegrates its brand and labels the rum drink as a “freaky Tiki drink” served with a free set of plastic vampire fangs, Vampire Family said. Vampire Family said Applebee’s introduced $1 cocktails amid business troubles resulting in more than 100 restaurant closures, and cited a 2017 article crediting the drink promotion for “helping the struggling casual chain stay afloat.”

Causes of Action: Lanham Act trademark infringement, unfair competition, dilution/tarnishment, false designation of origin, common law trademark infringement.

Relief: Damages, disgorged punitive damages, injunctive relief, attorneys’ fees.

Response: Applebee’s didn’t immediately respond to request for comment.

Attorneys: Machat & Associcates PC.

The case is Vampire Family Brands LLC v. Applebee’s Restaurants LLC, et al., C.D. Cal., No. 19-9222, Complaint 10/27/19

(Updated with additional reporting throughout)

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Rebecca Baker at rbaker@bloomberglaw.com; Keith Perine at kperine@bloomberglaw.com

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