Bryant Keil is the chair and CEO of Potbelly Sandwich Works, a chain of upscale fast-casual restaurants with 15 locations in the D.C. metropolitan area. His stores sell 11 different 6-inch sandwiches for $3.79 each and are decorated with old black-and-white photos, wooden tables with antiquey iron legs, and chalkboard-style signs. The menus all have a cute corporate history printed on the back detailing how the restaurant’s founders serendipitously discovered how much people enjoyed hot, tasty sandwiches in the late ’70s.
Last fall, Keil heard that a sandwich shop called Coggins’ Sandwich Manufactory had opened up on the George Washington University campus, and stopped by to take a look. He found that Coggins’ shared every one of his stores’ above characteristics, save two: Coggins’ sandwiches cost $3.99 each, and the Sandwich Manufactory’s menu claims that its founders serendipitously discovered how much people enjoy hot, tasty sandwiches in the shellshocked aftermath of World War I.
“I am not a trademark attorney,” Keil says. “But when you walk in, you think you’re in a Potbelly’s. That’s wrong.” The trademark attorney whom Potbelly subsequently hired, John Rawls of the Los Angeles firm Fulbright and Jaworski, thought the same thing. “We tried to negotiate with [Coggins’ parent corporation Farro Enterprises] to change their look,” Rawls says. But when negotiations fizzled, “we had no other choice”: On Jan. 31, he and his client filed suit against their rival in federal court.
In Potbelly’s brief, Rawls argues that “Coggins has copied virtually every aspect of Potbelly’s appearance, including its dé#cor, color scheme, layout, style of furnishings, fixtures, menu appearance, the look and placement of its corporate logo, and the assemblage and location of features found in Potbelly restaurants.” Item by item, the suit checks off the features that it alleges Coggins stole. “Signs with hand-painted appearance”? Coggins has them. “Tin panel ceilings”? Those too. “Exposed ductwork”? You bet. “Built in, glass-fronted, self-serve refrigerator located before ordering station”? Check. “Sandwiches wrapped in wax paper once, cut after first wrap, then wrapped a second time”? Yep.
Coggins’ wants to be Potbelly so badly, the suit alleges, that it “falsely claims a long history and humble beginnings that parallel the true story of Potbelly.” Suspicious of Coggins’ assertion that in 1918 “the skeptical craftsmen at J.D. Coggins Manufactory invented hot sandwiches,” Rawls says he conducted an “investigation” which revealed that Coggins’ first restaurant opened up in mid-2004. There is no indication, Rawls contends, that J.D. Coggins—or his Manufactory—ever existed.
“[E]vidence that Coggins intentionally imitated Potbelly’s distinctive look and feel is overwhelming,” Rawls concludes. “The similarities…are too great to be accidental.” To rectify the situation, Potbelly’s suit demands that Coggins’ change its stores’ appearance. “I do this every day for a living,” Rawls says, “and I think this is quite a compelling case.”
Coggins’ attorney John Climaco says that any similarities between Potbelly and Coggins’ “are in Potbelly’s head.” In a 44-page brief filed on Feb. 25, he explains that in contrast to the “cozy lived-in charm” to which Potbelly aspires, Coggins’ is distinguished by its faux–Industrial Revolution efficiency. “Each employee plays the role of a ‘factory worker’ working at an original Coggins’ Sandwich Manufactory,” Climaco notes. For example, “the person accepting payment for each order is not the cashier, but rather, the ‘Shipper.’” Coggins’ also “puts a unique twist on the traditional restaurant cooler, denoting its version of the sodas and other drinks displayed therein as ‘Coolants.’”
Additionally, Climaco asserts, his client’s sandwiches are indisputably unique. One, the “Fluffanutter and Bananas” sandwich, is a dessert sandwich with Marshmallow Fluff and hazelnut spread and is distinct from the plebian PB&J that Potbelly’s makes. In Footnote 6 of Climaco’s Nov. 24 rebuttal of Potbelly’s concerns, Climaco describes the Fluffanutter as “a long way from a common peanut butter and jelly sandwich which I refused to allow my mother to serve me for lunch.”
The Fluffanutter may have convinced Climaco of Coggins’ unmistakable flair, but many of its customers readily concede they’re dining at Potbelly’s doppelgänger. “It was incredibly obvious where they got their inspiration,” says Eric Shanks, a George Washington student who eats at Coggins’ regularly. “I figured it was just the cheaper version that GW bought.” Of nine customers surveyed who had been to both restaurants, seven thought Coggins’ was imitating Potbelly. None had a particularly strong preference for the sandwiches of the original, however, and several agreed with GW junior Jerry Schall’s opinion that Coggins’ “is a little bit better.”
Keil, Potbelly’s owner, dismisses that possibility, though he’s never eaten one of Coggins’ sandwiches. He is convinced Potbelly’s lawsuit will prevail, forcing Coggins’ to change its appearance. “If you can’t win a case like this, there’s something wrong with the system,” Keil says. He adds that his competitor’s mimicry shows “an embarrassing lack of creativity.”
Yet in the restaurant business, an embarrassing lack of creativity is not necessarily a crime. Just ask the owners of Rainforest Cafe, the jungle-themed restaurant chain that lost a lawsuit against Amazon Cafe, the jungle-themed restaurant chain. Or Hooters, which lost its bid to prevent a chain of Florida wing bars from adopting some of its most prominent features. “The courts are concerned that if trade-dress law goes too far it will become design protection of a sort we don’t have in this country,” says GW law professor Robert Brauneis. “The question was, ‘Are we going to give Hooters a monopoly over bars that feature sports, buffalo wings, and scantily clad women?’”
To win its case, therefore, Potbelly’s legal team will likely have to show not only that the restaurant was copied, but that it’s been replicated with enough precision that consumers can no longer easily discern between Potbelly and Coggins’. That will be a challenge, but Keil believes the facts—and justice—are on his side. “It’s like an artist seeing somebody plagiarize his painting,” he says. “It’s not right.”CP