Harry Caray has been deceased for 26 years, but the company that owns and manages the famed broadcaster’s name, image and likeness and other intellectual property says a restaurant in Dallas is infringing on Caray’s iconic—and trademarked—phrase:
Holy Cow!
Caray was a legendary figure in Chicago, where he was a broadcaster of Chicago White Sox and Chicago Cubs games from 1971 to 1997. He famously led the home crowd in singing “Take Me Out to the Ball Game” and even interviewed President Ronald Reagan, a former sports broadcaster, during a Cubs game in 1988.
In a lawsuit filed in a Dallas federal court Tuesday, Harry Caray Ltd. says Caray’s IP is used extensively by seven restaurants, including Harry Caray’s Italian Steakhouse in Chicago and Harry Caray’s Shortstop restaurant in Chicago’s O’Hare International Airport, which could serve customers traveling to or from Dallas–a relevant point in assessing likelihood of consumer confusion.
The problem, Harry Caray Ltd. asserts, is that there’s a restaurant chain called Holy Cow Restaurant (HCR). It features burgers, chicken tenders, cheesesteaks and similar dishes, many of which are priced under $20. The lawsuit focuses on the Holy Cow in Dallas, but the HCR website indicates there are as many as 11 HCR restaurants, including in New York (but not Chicago) and a 12th set to open in New Jersey.
The complaint against HCR and Dallas restaurant franchisor Adil Osamah Palwala says that in 2020 Palwala filed with the U.S. Patent and Trademark Office an intent-to-use the mark Holy Cow for restaurant, catering and related purposes. But the USPTO refused to register the mark, “finding that a likelihood of confusion existed between the mark HOLY COW and design and Harry Caray Ltd.’s HOLY COW! Mark.”
Despite the USPTO’s action and notification that Holy Cow was already registered, the restaurant still used the Holy Cow mark. It did so, Harry Caray Ltd. claims, to “create a false association with the Harry Caray restaurants, and to willfully, intentionally and unlawfully misappropriate the tremendous goodwill of Harry Caray Ltd.’s well known, if not famous HOLY COW! mark, as well as the goodwill associated therewith.”
The complaint also says that in 2023, HCR sought to register the mark Holy Halal Cow for restaurant-related purposes. Halal is an Arabic word for “lawful” and in the context of restaurants refers to permissible food for those who practice Islam. Once again the USPTO refused registration on grounds of a likelihood of confusion between Holy Halal Cow and Holy Cow!
Harry Caray Ltd. says HCR is using Holy Halal Cow.
Harry Caray Ltd. sent the defendants cease-and-desist letters in February and March, but they were to no avail. Exhibits to the complaint indicate HCR does not regard its restaurant services as similar, since HCR “offers halal, as well as vegetarian and vegan burgers and associated food offerings.” Also, there are no known instances of actual consumer confusion.
“Even a cursory review of the menus on your client’s website,” an attorney for the HCR wrote to Harry Caray Ltd. this spring, “makes clear that no Harry Caray restaurant serves any halal food . . . the fact that they do not serve halal food is enough to eliminate the risk of consumer confusion.” The letter also pointed out that its restaurants lack any “references to sports or Harry Caray’s persona” while insisting Harry Caray Ltd. doesn’t even use the Holy Cow mark in its restaurants.
Attorneys for Harry Caray Ltd. maintain those reasons are “nonsensical,” since its restaurants offer a wide range of food and because both sets of restaurants “serve burgers, hot dogs and chicken sandwiches, as well as vegetarian options.”
As to the absence of known instances of consumer confusions, Harry Caray Ltd. notes that “is not the standard for trademark infringement.” The applicable standard is likelihood of confusion.
Harry Caray Ltd.’s complaint, signed by attorney John S. Kenefick of Macdonald Devin Madden Kenefick & Harris P.C., includes claims for unfair competition, infringement, dilution and unjust enrichment. It demands an injunction that would block HCR from using Holy Cow! It also seeks payment of assorted damages, including up to $2 million for willful infringement for each mark per type of goods or services sold.
A complaint only tells one side of the story. Attorneys for HCR will answer the complaint and deny wrongdoing. As discussed above, HCR contends the restaurants are very different and are located in different locations. HCR seems to believe consumer confusion is not a credible risk. It’s possible the parties could reach an out-of-court settlement where Harry Caray Ltd. licenses its mark for use by HCR.
The case has been assigned to U.S. District Judge David C. Godbey.
