MOISHE'S INC., A QUEBEC CORPORATION, APPELLANT,
v.
MOISHE'S STEAK HOUSE AND SEAFOOD, INC., A FLORIDA CORPORATION, APPELLEE
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Moishe's Inc., a Montreal restaurant operating for over 50 years, appealed the denial of a temporary injunction against a North Miami Beach restaurant using a similar name and logo. The court affirmed the denial, finding insufficient evidence of trademark infringement because the restaurants did not compete in the same geographic area and appellee took corrective steps upon learning of appellant's objection.
The court affirmed the denial of the temporary injunction because appellant failed to establish a prima facie case for either common law trademark infringement or statutory trademark dilution, as the record showed no actual competition in the same trade area and appellee took corrective measures upon learning of appellant's objection.
[1] A temporary injunction for trademark infringement requires proof of actual competition between the parties.
[2] A statutory claim for business dilution under section 495.151, Florida Statutes, requires sufficient proof of prior use of the name in Florida.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We affirm because the record contains conflicting evidence on the selection and use of the similar name and logo and contains sufficient evidence showing appellee took corrective steps once it learned appellant objected to its use of the similar name and logo.”
The court's primary reasoning for affirming the denial of the temporary injunction, emphasizing the lack of clear evidence of infringement and appellee's good faith corrective measures.
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Join FLexlaw to unlock all legal intelligenceAppellant operates a well-known Moishe's Steak House restaurant in Montreal, Canada for over fifty years. Appellee, a separate family-owned restaurant…
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PER CURIAM.
Appellant seeks reversal of an order denying its motion for temporary injunction to prevent trademark infringement. Appellant is a family owned business operating a well-known restaurant, Moishe’s Steak House, in Montreal Canada for over fifty years. Appellee, also a family owned restaurant business, opened a new restaurant in North Miami Beach using a similar name and logo to that used by appellant.
Appellant filed an action under common law trademark infringement and section 495.151 Florida Statutes (1987), and sought a temporary injunction to prevent appellee from using the similar name and logo. The trial court denied the motion for temporary injunction finding that appellant failed to submit sufficient evidence to support tem porary relief. Appellant contends on appeal that the trial court erred because it submitted sufficient evidence to show a prima facie case of violation of common law trademark infringement. Appellee responds that the trial court was correct since appellant failed to prove the common law element of actual competition.
We affirm because the record contains conflicting evidence on the selection and use of the similar name and logo and contains sufficient evidence showing appellee took corrective steps once it learned appellant objected to its use of the similar name and logo. The record fails to support a statutory basis for business dilution under section 495.151, Florida Statutes (1987), since prior use by appellant of the name in Florida is not sufficiently proved. Abner’s Beef House Corp. v. Abner’s International, Inc., 227 So. 2d 865 (Fla.1969); Junior Food Stores of West Florida, Inc. v. Jr. Food Stores, Inc., 226 So. 2d 393 (Fla.1969). The record fails to support relief under the common law action because there is no proof that the two restaurants compete in the same trade area. American Bank of Merritt Island v. First American Bank and Trust, 455 So. 2d 443 (Fla. 5th DCA 1984). Appellant’s argument that it has shown an exception to the actual competition requirement based upon bad faith by appellee is not supported by the record, especially in light of the evidence showing appellee’s subsequent attempts to notify the public that its restaurant was not associated with appellant.
AFFIRMED.
GLICKSTEIN, DELL and WALDEN, JJ., concur.
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Citator
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- Junior Food Stores OF W. Fla., Inc. v. JR. Food Stores, Inc., 226 So. 2d 393 (Fla. 1969)
- Abner's Beef House Corp. v. Abner's Int'l, Inc., 227 So. 2d 865 (Fla. 1969)
- The Am. Bank OF Merritt Island v. First Am. Bank & Tr., 455 So. 2d 443 (Fla. 5th DCA 1984)