Sizzling Legal Confusion?


On the front page of Friday’s Des Moines Register, columnist Abby Simons writes about a trademark infringement case based on our own Iowa Lottery.

It seems as though the lawyers from Sizzler International, the “high-brow” Sizzler steak restaurant chain, have sent a cease-and-desist request based on trademark infringement using the word “Sizzler” in Iowa Lottery’s “Hot Lotto Sizzler” game. Iowa Lottery, in an effort to quash the claim have decided to take the case through to a juried trial to claim they have all the rights to use the word.

Now, having been a private label graphic designer for the last 15 years, I understand the need for brand protection and clear trademark definition in the marketplace. But these items, a restaurant chain and a lottery game, don’t have even a minuscule chance of crossing paths in their respective markets. Of course, I’m no trademark lawyer (I’d call in Brett Trout for a more professional opinion on this), but (to my understanding) “trademark infringement” implies that there would be confusion in the market, due to a party impeding on an already established trademark or brand.

I don’t see it… I also can’t see the reason for the Lottery officials and their counsel to even take the cease-and-desist seriously.

Referenced in the article are also Hormel, due to their “Little Sizzler” sausages and rapper Miguel Collins, who goes by the stage name “Sizzla.” There wasn’t any reference to cease-and-desist orders being sent to them…

I simply can’t see why Sizzler International or the Iowa Lottery are even in discussion about this. What do you think? Would you EVER confuse the “Hot Lotto Sizzler” ticket and its subsequent marketing with any restaurant or other “sizzling” food product?

I’d call it food for thought… (sorry for the pun). Let me know what you think.

Keep Cooking!
Andrew

2 Comments
  1. Andrew,BR/BR/ You hit it right on the head. The question is not only the similarity of the trademarks. You also have to consider the goods and/or services to which they are applied. There are currently other federal trademark registrations on “Sizzler” for things like carnival rides, model rockets, computer controlled lights and torque converters. Sizzler restaurants definitely do not have a monopoly on the trademark outside of the food service industry. BR/BR/ The primary consideration is whether there is a likelihood consumers would be confused that the lottery tickets originated with, or were sponsored by, the restaurant chain. With trademark cases, the devil is always in the details. I therefore avoid making any predictions before investigating all of the facts. Based upon what I have read of the case, however, it certainly looks like the restaurant chain has its work cut out for it at trial. BR/BR/As an aside, I was wondering if you had any thoughts on our own Iowa Lottery Association outsourcing its trademark work out of state. BR/BR/Brett

  2. Hi Brett – BR/BR/I appreciate the feedback. As I read the DM Register article, I couldn’t help being pushed from curiosity to astonishment… and, yes, of course, the devil is in the details. I’ll be interested to follow the case and see who blinks first.BR/BR/As for the Iowa Lottery outsourcing their trademark work… This is a only guess, but since they’re members of MUSL (Multi-State Lottery Association, http://www.musl.com), games and promotions developed by these members may be handled, legally, within the confines of the corresponding host state, province, whatever…(?)… BR/BR/I’d have to look further into how games and promotions are contracted within the association, but that would have to be my best guess.BR/BR/Great comment and even a better question. BR/BR/I look forward to hearing (reading) from you again soon.BR/BR/Keep Cooking!BR/Andrew