During the latter portion of this past week, I was attending the Missouri Bar Solo and Small Firm Conference in Osage Beach (home to the beautiful Lake of the Ozarks). As I was driving down U.S. 54 to The Happy Fisherman for dinner Wednesday evening (which has the best all-you-can-eat catfish and salad bar), I noticed a frozen custard shop called “Andy’s Frozen Custard” (website here). Below are some pictures of Andy’s:
As you can see, the Andy’s logo and signage are predominantly red and yellow, with the word ANDY’S presented in a stylized cursive font. Also, there is a huge, double-scoop ice cream cone perched on the top of a rectangular roadside sign that is situated close to the restaurant’s entrance. Although not important to the story, I note that Andy kind of looks like Elmer Fudd with a bow tie.
Just as I was pulling into the parking lot of The Happy Fisherman, I caught a glance of another frozen custard shop on the opposite side of the street called “Randy’s Frozen Custard.” Randy’s is located less than 1/4 of a mile from Andy’s and was recently ranked #1 for the best place to grab a frozen treat (Andy’s was ranked #2). Here are some photographs:
Not unlike ANDY’S, the name RANDY’S is depicted in a stylized cursive font against a red background. Although the letters are white and not yellow like those that make up ANDY’S, the restaurant’s outside lighting gives off a yellow glow. Furthermore, there is large, two-scoop dessert cone sitting on top of a pole next to the restaurant. Thankfully, there is no Elmer Fudd lookalike.
After eating four pieces of catfish, salad, bread, french fries, hush puppies, coleslaw, pasta salad, and a complimentary pineapple fritter, I decided to take a trip over to Andy’s for a little frozen custard (wouldn’t you?). Before I ordered my espresso and chocolate chip concrete with vanilla custard, I asked the teenage employee at the window what the deal was with Randy’s. Of course, he didn’t know all the details but, apparently, the guy who owns Randy’s used to be an Andy’s franchisee. And, in fact, where Randy’s is now located used to be where Andy’s was before it moved into its current location. The employee basically indicated that the owner of Randy’s decided not to renew his Andy’s franchise and now does everything he can to make people think there is some relationship between his frozen custard shop and Andy’s.
I have no idea whether what was told to me is accurate, but if it is, I wonder why Andy’s seems to be doing nothing about it. Andy’s owns numerous federal registrations for ANDY’S and ANDY’S FROZEN CUSTARD (Reg. Nos. 3097065, 2774370, 3183122, among others), not to mention a registration for the dessert cone signage (Reg. No. 2679514). In my opinion, when you take into account the totality of the circumstances, it appears that Randy’s is merely trying to ride the coattails of Andy’s. Unquestionably, the names, colors, signage, and fonts are all extremely similar, and both restaurants sell frozen custard. Again, I don’t know all the facts and there is likely some background information I’m not privy to, but to just the casual observer (OK, a casual observer who also happens to be a trademark attorney), it looks like trademark infringement to me.
Oh, and by the way, the concrete I inhaled at Andy’s was delicious. Unfortunately, I didn’t have the chance to try Randy’s frozen custard, but I have a feeling that, like everything else about Randy’s, it would have been confusingly similar to Andy’s.