Judge finds no bad egg in battle between themed restaurants

By Steve Green

Monday, Sept. 20, 2010 | 1:50 a.m.

Las Vegas diners have plenty of reason to be confused about who owns the various egg-named restaurants in town.

But that's not the fault of one of the newest entrants in the field, a business called the Egg World, a federal judge has ruled in awarding the Egg World an initial legal victory in a trademark lawsuit pitting rival egg-themed restaurants against each other.

The dispute started in June when the owner of the two Egg Works and the one The Egg & I restaurant in Las Vegas sued the owners of the new Egg World at 7906 W. Sahara Ave.

The plaintiff is egg restaurateur Bradley Burdsall and his Egg Works restaurants on Flamingo and Sunset roads. Though not a plaintiff, the Egg Works' sister restaurant, The Egg & I on Sahara Avenue, plays a prominent role in the case.

U.S. District Judge LLoyd D. George, who held a hearing and heard from witnesses last month, last week denied a motion for a preliminary injunction that would have barred the Egg World business from using that name.

"The evidence presented by Egg Works reveals that a substantial number of consumers expressed a 'non-relevant confusion;' confusion that resulted from something other than Egg World’s mark," George wrote in his ruling. "The record contains evidence that strongly indicates that the source of the consumers’ 'non-relevant confusion' is the close affiliation between the Egg & I and Egg Works."

"The evidence of actual confusion indicates confusion caused by plaintiffs’ operation of three restaurants using two names," George further explained.

For instance, one witness said: "As we were driving down Sahara we witnessed a gentleman with a yellow sign that caught our eye that said 'Egg World.' We were looking for 'Egg and I' – and realized that we got confused and went to the wrong place."

The Egg and I was not a plaintiff and there was no suggestion in the lawsuit that Egg World had infringed on The Egg & I's trademark, the judge noted.

"The consumers’ confusion cannot be attributed to defendant’s use of a trademark confusingly similar to Egg Works’ trademark," the judge wrote in his ruling.

"Stated otherwise, the plaintiffs’ marketing successfully informed their consumers that they operated three breakfast and lunch restaurants under two dissimilar names that included the word 'egg.' The consumers, so educated, submitted declarations expressing confusion whether the plaintiffs opened (or were opening) a fourth breakfast and lunch restaurant using a third name that included the word 'egg,"' George wrote.

Ryan Gile, a Las Vegas trademark attorney with the law firm Weide & Miller Ltd., commented on George's ruling in his blog: "It’s statements like these that restore my faith in an impartial court’s ability to cut through all of the legal arguments propounded by attorneys on both sides and ascertain the truth – and then articulate that truth so brilliantly, eloquently and concisely."

In addition, George found the name "Egg Works" is descriptive as defining a place that serves egg-based meals, as opposed to being distinctive.

But with the Egg World just 4 miles away from the closest Egg Works, George found the "proximity" factor favors Egg Works and that could be an issue if the lawsuit continues.

Several other factors were considered by the judge, including the similarity of the phrases "Egg Works" and "Egg World," and he said those factors favored neither side at this stage of the litigation.

Egg Works, represented by attorneys with the law firm Lewis and Roca, did win an initial concession in the dispute when it demanded and Egg World removed egg-shaped faces from its sign that Burdsall alleged infringed on his trademark.

Egg World is represented in the litigation by Guinness Ohazuruike of the Guinness Law Firm in Las Vegas.