A company in Washington state and Shreve, Crump and Low are battering each other with dueling legal claims over fish-shaped pitchers that make gurgling sounds.
GurglePot, which makes GurglePot Pitchers, sued Shreve's last December, accusing the chain of trying to illegally force it out of the gurgling-fish-pitcher market with an invalid trademark on its own line of Gurgling Cods. The suit was transferred from federal court in Washington to federal court in Boston last week.
The two companies had managed to not get in each other's krill for years, but last fall, Shreve's threatened GurglePot with legal action unless it stopped selling its fishy pitchers within 50 miles of Shreve's Newbury Street store - and agreed to pay a 10% royalty on its pitchers. What got Shreve's to carping was the discovery that the sole DeScenza store in Downtown Crossing had started selling GurglePot's wares.
GurglePot responded to the letter by filing a federal trademark lawsuit.
GurglePot says Shreve's can't possibly claim a trademark on fish-shaped gurgling pitchers because other companies have sold the things for decades and that, in any case, GurglePot swam up the trademark river a year before Shreve's did. And besides, GurglePot exclaims, its design is an original gurgling-fish design, while Shreve's is just an homage to the gurgling-fish-pitcher designs of decades past. Just look at the sheer scale of differences:
The design of the GurglePot Pitcher does not include any protruding fins. Only the pectoral, pelvic, and tail fins are shown; none stick out from the body of the pitcher. By contrast, Defendant's design includes protruding dorsal, adipose, and anal fins. The connection of the tail fin to the nape is also different between the two designs.
The fins on Defendant's design include rays, which the fins on the design of the GurglePot Pitcher do not.
The gill covering in Defendant's design is much more elaborate.
The shape of the mouths differs considerably between the two designs.
The design of the GurglePot Pitcher has a much more bulbous head and less pointed snout than Defendant's design.
The eyes in the GurglePot Pitcher consist of two concentric circles. Defendant's design uses weighted circles for the eyes.
Also, GurglePot notes, Shreve's fish are perched on a base, while its are free standing.
The company is seeking a boatload of damages, penalties and attorneys' fees.
Pollocks, Shreve's replies: GurglePot is really floundering here and has no case, because cease-and-desist letters sent to GurglePot and DeScenza do not constitute the sort of false advertising GurglePot was claiming and that Shreve's never made any sort of false advertising claims about the pitchers in the marketplace. Also, it's pretty crappie to force Shreve's - and DeScenza - to shlep all the way out to the other coast to answer for themselves in a lawsuit.
After taking some time to mullet over, a federal judge agreed with Shreve's on the jurisdictional issue, but declined to dismiss the suit outright.
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