Pass judgement on: Fortress Pines can’t prevent Brinkerhoff eating place from the usage of hummingbirds

In his first ruling within the case, a pass judgement on has decided that buyers are not likely to be at a loss for words between the unique Fortress Pines Golfing Membership and an upcoming eating place within reach that stocks a hummingbird theme.

Pass judgement on Kato Crews’ resolution on Dec. 23 is a win for Mark and Jo Brinkerhoff, a married couple who have been informed by means of Fortress Pines to stop and desist the usage of hummingbird insignia as they spend an estimated $14 million on a steakhouse and cocktail front room in Fortress Rock.

“As a result of there’s little chance of misunderstanding, the hurt Brinkerhoff (Eating places) would endure if it used to be pressured to stop the usage of its trademark and rebrand its complete idea outweighs any attainable hurt to Fortress Pines,” Crews wrote in denying to factor an injunction.

The couple’s eating place will probably be named The Brinkerhoff, an homage to Mark’s circle of relatives and its legacy of fashionable eating places within the Denver space, together with L. a. Loma. The living room is to be referred to as Bar Hummingbird, an homage to Jo’s Mexican heritage, to which the soaring little birds are essential, in addition to Fortress Rock’s location inside hummingbird migration paths.

That doesn’t sit down neatly with Fortress Pines Golfing Membership, whose trademarked emblem of 2 hummingbirds in flight is ubiquitous across the golfing path. The membership believes the Brinkerhoffs are deliberately infringing on that hummingbird trademark in an try to trick its long term consumers into believing that Bar Hummingbird is affiliated with the luxurious nation membership.

After receiving cease-and-desist letters from the membership, the Brinkerhoffs sued Fortress Pines on July 15 in an try to unravel their dispute ahead of Bar Hummingbird opens. Fortress Pines spoke back by means of asking Crews for the injunction and complained that the Brinkerhoff tiff used to be distracting the membership from its PGA BMW Championship in overdue August.

All through a listening to in his court docket on Oct. 11, Crews got here to consider the Brinkerhoffs. He stated that Jo Brinkerhoff “credibly testified” that Bar Hummingbird’s title is “in keeping with the religious importance of the hummingbird to her Mexican heritage” and used to be no longer an try to piggyback at the recognition of Fortress Pines or infringe on that membership’s logos.

“Given the numerous limitations to access and the loss of advertising relating to Fortress Pines’ bar and eating place services and products, even though the general public makes use of a low stage of care in settling on a bar and eating status quo, it’s not likely they’d affiliate Bar Hummingbird with Fortress Pines’ unique golfing path, membership and different choices,” the pass judgement on defined in a 17-page ruling.

“Likewise, to the level any Fortress Pines individuals or visitors may additionally seek advice from Bar Hummingbird, their wisdom of the membership’s exclusivity suggests any confusion could be nil.”

Whilst the pass judgement on said that hummingbird emblems are common at Fortress Pines, he decided that Bar Hummingbird’s emblem is a distinct species of hummingbird from the golfing path’s emblem. He notes, “The Americas are house to 366 hummingbird species.”

Crews cited a 2003 case through which Kellogg’s sued an organization referred to as Toucan Golfing for supposedly infringing on its Toucan Sam trademark. A courtroom dominated that Kellogg’s may no longer declare rights over toucans, best over Toucan Sam, and Crews discovered similarities on this case: “Fortress Pines has no longer cornered the marketplace on all attainable makes use of of the hummingbird in trade.”