Carthage restaurant sues Springfield eatery for trademark violation

The owner of Whisler’s Drive Up restaurant in Carthage, Missouri, filed a trademark-infringement lawsuit against the owner of a Whisler’s restaurant in Springfield, Missouri, according to the Springfield News-Leader.

Whisler’s Drive Up has been operating at 300 N. Garrison Ave., in Carthage since 1953 on an alignment that was marked Route 66 from the 1930s to 1972. Whisler’s has enjoyed a reputation for great hamburgers in that part of southwest Missouri for decades.

The Springfield Whisler’s sits at 208 W. McDaniel St., about a block south of the Park Central West alignment of Route 66 in downtown. It, too, enjoys high marks from online reviewers, including Yelp!, although not as high as the Carthage location.

The newspaper had some details about the lawsuit:

The lawsuit says the Carthage business by that name was started in 1953 by Charlie Whisler, who is now deceased, and has been trademarked since 2010. It is now owned by Michael Evans Holdings LLC.

“The defendants’ use of the (trademarks) ‘Whisler’s’ and ‘Whisler’s of Springfield’ in connection with fast-food restaurant services is likely to cause consumer confusion, mistake and deception,” the suit says, arguing that the Springfield restaurant’s use of the name “dilutes the value of the Whisler’s (trademark) owned” by Drew Evans in Carthage.

The suit says the Carthage Whisler’s has “become well and favorably known” in the area and customers might “mistakenly conclude that the service offered” in Springfield “are licensed or certified by” the Carthage owners.

According to data on its own Facebook page, the Springfield Whisler’s opened in 2009. Missouri Secretary of State data also indicates an opening at the location the same year. The timing of this could be crucial for the lawsuit’s chance to succeed, as the Whisler’s name reportedly wasn’t trademarked until about a year later.

The previous owner of the Springfield Whisler’s, Josh Butcher, told the newspaper in 2012 there was a connection between it and the Carthage Whisler’s.

Butcher said, in that story, that he grew up in Carthage and that his “friend’s father” bought the Carthage restaurant in the 1990s. It says “Butcher asked about starting a Whisler’s in Springfield and the owner supported the idea.”

The Springfield restaurant’s Facebook page says it was the first franchise from the Carthage restaurant.

Kathy Jeffries and her company, Kathy Management LLC, reportedly bought the Springfield Whisler’s in June.

The Carthage Whisler’s sits less than 60 miles from the Springfield location. Trademark-violation cases often consider proximity when considering damages.

But if the Springfield location did open before the Carthage Whisler’s trademarked its name, a lawsuit’s chances to succeed are considerably lessened. The discovery process also may find a franchise agreement with the Carthage Whisler’s and Butcher, which also would gut the case.

This case is complicated enough, the restaurants will have to let the lawyers sort it out.

(Image of Whisler’s Drive Up in Carthage, Missouri, by jawsawthat via Flickr)