Chipotle Sues Sweetgreen For Having Its Own ‘Chipotle Burrito Bowl’
If there is one aspect of trademark law that should be the most understandable for business leaders and their lawyers, if not for the general public, it’s that you generally cannot get trademarks on purely descriptive terms. Yes, you can name your product Coca-Cola and get a trademark on that term, but you cannot get a trademark on “cola” or “soda” and threaten or sue everyone else who uses it to describe their own products. Simple, right?
It appears that Chipotle doesn’t get it. The burrito house chain recently sued a rival, Sweetgreen, over the latter’s sale of chipotle chicken burrito bowls.
In a lawsuit filed Tuesday, Chipotle said that Sweetgreen’s “Chipotle Chicken Burrito Bowl” is being marketed in a “very similar and directly competitive” manner that is similar to Chipotle’s chicken burrito bowl. Sweetgreen released the salad last week, with a press release saying that the new menu item uses “chipotle spices.”
Chipotle argues that the Sweetgreen salad not only has similar ingredients, including chicken, a grain base (i.e. rice) and black beans, but also took issue with Sweetgreen’s marketing because it accuses its rival of “making prominent use of the famous Chipotle trademark” in ads.
I can assure you this is all excessively stupid. First, the recipe conversation is absolutely a non-starter. What Chipotle is describing are the contents of a burrito, but in a bowl. That’s as available for protection under trademark law as the contents of a club sandwich, which is to say not at all.
As for the use of a similar trademarked term, yeah it’s similar, but it’s also purely descriptive. Sweetgreen is advertising a “chipotle chicken burrito bowl,” which consists of chicken in chipotle spices and burrito ingredients in a bowl. That’s as descriptive as it gets. The fact that Chipotle decided to name itself after a flavor doesn’t in any way preclude Sweetgreen from selling and advertising this product. To suggest otherwise would be absurd.
Chipotle also accused Sweetgreen of using a “font nearly identical” to Chipotle’s on its website promoting the new salad. Some of Sweetgreen’s ads, also use color that’s “nearly identical” to Chipotle’s trademarked Adobo Red.
That’s a stretch as well. These are directly from Chipotle’s filing. First, here is an exampe of its own mark.
And now for the filing’s examples of the infringing uses.
And:
In the second example, the colors are similar, but two caveats. First, Sweetgreen’s name is on the sign, which presumably sits just outside a Sweetgreen location, so I’m not sure where the public confusion would occur. Second, both entities chose shades of that color almost certainly for the most obvious reason: a chipotle pepper is a smoked pepper typically kept in adobo sauce. That sauce is roughly the colors that are being used here.
In other words, Chipotle is mostly suing as a result of its own original sin: it chose a name for itself that can be used as well to describe a sort of food or flavor on offer. I don’t expect this suit to get very far, though that may not be the point. Sweetgreen is much smaller than Chipotle and this may simply be a bullying attempt by the latter.