Hopdoddy suit says Oklahoma restaurant is an ‘unauthorized clone’

4:13 p.m Thursday, March 26, 2015 Business

It’s a battle over Bunz.

HopBunz, a Tulsa, Okla., burger joint, to be exact.

The owners of Austin-based Hopdoddy Burger Bar have filed suit against the Oklahoma restaurant, accusing it of trademark infringement, copyright infringement, unfair competition and unjust enrichment.

The saga began in March 2014 when Oklahoma restaurateur James Blacketer allegedly approached Hopdoddy, asking to buy a franchise, according to documents filed this week in U.S. District Court in Austin. However, Hopdoddy, which has a pair of locations in Austin, as well as ones in the Dallas area, Denver and Scottsdale, Ariz., doesn’t sell franchise rights.

Undeterred, Blacketer allegedly sent an email to Hopdoddy executives that said, in part, “I know you said that you were not interested in franchising Hopdoddy’s (nevertheless) … I hope to open discussion on (acquiring) a franchise of Hopdoddy’s,” according to the suit.

Again, Hopdoddy executives said they declined Blacketer’s request.

By August, Blacketer had opened his own restaurant, HopBunz Crafted Burgers and Beers, in Tulsa, court records indicate. Hopdoddy calls HopBunz “an unauthorized clone.”

A second HopBunz, also in the Tulsa area, has since opened.

HopBunz didn’t respond to a message from the American-Statesman seeking comment.

Hopdoddy president and CEO Dan Mesches said the suit was a last resort.

“We respect everyone’s right to bring quality burgers to food lovers across the country and understand that imitation can be the sincerest form of flattery, but HopBunz has unfortunately created confusion in the marketplace,” Mesches said. “After months of failed attempts to resolve this issue amicably, we have been advised to take action to protect the Hopdoddy name that our loyal fans have loved since 2010.”

The consumer confusion comes, in part, because “defendants or their agents meticulously and extensively gathered on-site information at Hopdoddy in Austin, and took photographs and notes for purposes of re-creating Hopdoddy in Tulsa,” the suit claims.

The photos and notes were then allegedly used to “fabricate, print or otherwise re-create signature Hopdoddy trade dress, design elements or copyrighted materials, for purposes of utilizing same in its HopBunz restaurant,” according to the lawsuit. “Upon information and belief, defendants’ primary goal in forming HopBunz was to create a self-franchised facsimile of Hopdoddy.”

One example: The suit alleges parts of the Hopdoddy menu were “lifted wholesale,” pointing to a customer’s post on the HopBunz Facebook page that says, in part, “Do you also own Hopdoddys? I love that place. Thank you for bringing it here and not changing the menu!!”

In its filing, Hopdoddy asks the court to block HopBunz from using “confusingly similar” marketing materials. The restaurant is also seeking statutory damages and reimbursement for attorneys’ fees, among other things.

A trial date hasn’t been set.

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