Imagine the time and effort you’ve placed into the ambiance, feel or even the program you’ve created for some exciting dinner theater getting copied by the competition.  That’s right, how fair would it be if your version of “Supper with Oliver Twist” got copied by the lounge across the street offering steaks and their own performances of “Dinner with Dickens” – that’s what Medieval Times claimed happened in a now-concluded lawsuit.

If you’re not familiar with Medieval Times, it’s a (you guessed it) medieval themed restaurant in buildings that look like medieval style castles that offers a meal combined with live performances of a tournament of knights featuring a storyline with knights on horseback performing jousting and games of skill.  

The story-line has different portions of the audience following and rooting for the knight bearing the color of their section (one of six different colors).

A few years back a competitor Pirate’s Dinner Adventure, Inc., decided to open a series of similarly themed restaurant shows called the Camelot Knights Dinner & Adventure Tournament with six-knight-jousting-games-of-skill themes near Medieval Times locations in Buena Park, California and Orlando, Florida.

Medieval Times, looking to protect itself, sued for trade dress infringement, and unfair competition and dilution but not for copyright infringement.  And that’s where it’s troubles started in court.  After reviewing motion to dismiss and the amended complaint, the district court dismissed the complaint noting that the claims against the competition for trademark was improper because “trademark law does not protect the content of a creative work of artistic expression as a trademark for itself” and that “as currently plead, Plaintiff is attempting to cloak a copyright claim in trademark clothing.”  (opinion in link)  Noting that while cases may protect a restaurant’s decor as trade dress, the claims made that copying the content of the dinner theater and tournament didn’t amount to a claim of copying the decor of the restaurant’s interior or its color, which would be protectable trademark, but rather that the visual expression of its theater performance was the infringing act, which amounts to a potential copyright claim, but that the performance was not protected in trademark.

Tip:  Often brands overlook other forms of intellectual property protection, like trade secrets or copyrights that are available to them in favor of traditional trademark remedies – brands should consider all their intellectual property as fair game for deciding what to protect and what differentiates them from competitors.

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