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Cava Group, Inc. v. Mezeh-Annapolis, LLC

United States District Court, D. Maryland, Southern Division

July 7, 2016

CAVA GROUP, INC., Plaintiff,
v.
MEZEH-ANNAPOLIS, LLC, et al., Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         In this action, Plaintiff, Cava Group, Inc. (“Cava Group”), alleges that Defendants Mezeh-Annapolis, LLC, Mezeh-Wheaton, LLC, Saleh Mohamadi, and Steve Walker (collectively, “Defendants”), unlawfully infringed on Cava Group’s trademark and trade dress. Cava Group and Defendants have each moved for summary judgment. ECF Nos. 45 & 46. Both motions are fully briefed and no hearing is necessary. See Local Rule 105.6 (D. Md.). For the reasons that follow, Cava Group’s Motion for Summary Judgment is denied, and Defendants’ Motion for Summary Judgment is granted, in part, and denied, in part.[1]

         I. BACKGROUND

         In 2011, Cava Group opened its first fast-casual restaurant-Cava Mezze Grill-in Bethesda, Maryland, serving Greek- and Mediterranean-inspired food in an assembly-line style, the service style popularized by Chipotle Mexican Grill. See ECF No. 46-2 at 13, 20, 54; see also ECF No. 45-4 at 20.[2] Since then, Cava Group has opened several more fast-casual restaurants in various locations throughout Virginia, Maryland, Washington, D.C., and, most recently, in California. ECF No. 46-2 at 55-56; see also ECF No. 45-3 at 2. The fast-casual restaurants were inspired by Cava Group’s more formal, sit-down restaurant, Cava Mezze, which serves Greek-and Mediterranean-inspired small plates. ECF No. 46-2 at 10. The word “mezze, ” according to Cava Group, means “small plates.” See Id. at 38.

         Cava Group is the owner of United States Registration No. 4, 059, 522 (“the ‘522 trademark”) for the stylized service mark, CAVA MEZZE GRILL, for restaurant services featuring take-out Mediterranean cuisine, wine, beer and liquor. See ECF No. 45-3 at 7. The colors black, white, and orange are claimed as features of the mark.[3] The mark consists of the word “CAVA” in capital letters colored white, except for the letter “V, ” which is in orange. The phrase “MEZZE GRILL” is positioned under the word “CAVA” and written in smaller font and colored white. All of this wording appears on a black background. The trademark registration indicates that the English translation for the word “cava” is “cave” and the translation for the word “mezze” is “appetizer.” Id. The registration further indicates that Cava Group makes no claim to the exclusive right to use “mezze grill, ” apart from the manner in which it is displayed in the mark. Id. The ‘522 trademark as it appears on the registration is shown below:

(IMAGE OMITTED)

ECF No. 45-3 at 7."[4] The United States Patent and Trademark Office ("PTO") issued this registration without requiring proof of secondary meaning.[5] ECF No. 45-3 at 3.

         The first several locations of Cava Mezze Grill used similar exterior and interior features. See ECF No. 46-2 at 56-58. Specifically, the exterior of the restaurants feature a dark hardwood fa9ade with the stylized logo "Cava Mezze Grill, " matching the font style and coloring of the '522 trademark, as shown below:

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ECF No. 45-3 at 6. Dark reclaimed wood is used in the interior of the restaurant, along with brushed black metal. ECF No. 46-2 at 56-58, 63, 65. The exterior appearances of more recently opened Cava Mezze Grills differ from the original renditions, however. Specifically, some stores use a white background for the exterior façade with black lettering for the “Cava Mezze Grill” logo, with the same orange “V.” Id. at 61-63. Others feature the standard white-and-orange font colors, but on a metal bar, rather than a black background. Id. at 66. The differences in exterior design choices are attributed in part to differing landlord restrictions on what color and design concepts can be featured on the exterior of a particular building, and in part to the aesthetic design choices of the Cava Group team in conjunction with their architects and design experts. See Id. at 62-65. Additionally, newer locations feature an open kitchen concept, so that customers can see food being made from scratch. Id. at 71.

         All of the Cava Mezze Grill restaurants utilize the assembly-line concept, in which patrons of the restaurant can customize their selections to their taste. A customer first chooses a base-a pita, salad bowl, rice bowl, or mini pitas-and then can choose from a variety of spices, proteins, other toppings, and sauces. ECF No. 45-3 at 3. The selection of proteins, which includes lamb sliders, chicken, braised beef, gyro meat, falafel, and grilled meatballs, are served out of cast iron pots. Id. These options are reflected on the restaurants’ takeout menus that are used at all Cava Mezze Grill locations. Id. at 3. The takeout menus are thin rectangular cards that feature a dark background with the white-and-orange “CAVA MEZZE GRILL” logo at the top, akin to the ‘522 trademark. Id. at 3-4, 11-12. The remainder of the text on the menu features the same white and orange colors. Id. at 11-12. On one side of the takeout menu appears the phrase, “IT’S WHAT’S ON THE INSIDE THAT COUNTS.” Id. at 12. Cava Mezze Girl’s takeout bags use the same phrase. Id. at 4.

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ECF No. 45-3 at 11-12.

         In addition to its Cava Mezze and Cava Mezze Grill restaurants, Cava Group sells various dips and spreads in various grocery stores on the East Coast. ECF No. 45-3 at 4. The labels on most of those items feature the same colors that appear on the Cava Mezze Grill storefronts, namely, black, white, and orange, and consist of the word “CAVA” in the same standard, block capital letters colored white, except for the letter “V, ” which is orange. The word “mezze” is positioned under the word “CAVA” in a white font color. One dip, a roasted serrano hummus, is similar, although the words “CAVA” and “mezze” are in a black font, with a white “V” in the word “CAVA, ” on an orange background. ECF No. 45-3 at 13. Id. at 13.

         Cava Mezze Grill advertises itself on social media platforms, including Twitter, Instagram, and Foursquare, with the username “Cava Grill.” See ECF No. 49-2.

         Defendant Mezeh-Annapolis, LLC is a Virginia limited liability company, while Defendant Mezeh-Wheaton, LLC, is a Maryland limited liability company. ECF No. 48 at ¶¶ 7- 8; ECF No. 54 at ¶¶ 7-8. Defendants Mohamadi and Walker are members of the LLC companies. ECF No. 45-4 at 3. In 2013, Defendants opened a fast-casual Mediterranean restaurant called Mezeh Mediterranean Grill (“Mezeh”) in Annapolis, Maryland, and, later that year, opened another location in Wheaton, Maryland. Before then, Mohamadi and Walker had owned franchises of various fast-food restaurants for several years, but decided that they wanted to create their own brand. See Id. at 6-7. Before coming up with the Mezeh concept, Mohamadi and Walker visited multiple Mediterranean restaurants in and around Washington, D.C., New York, and Chicago, including Cava Mezze Grill. Id. at 9. Both Mezeh restaurants use the assembly-line process, in which a customer selects a base, such as a pita, wrap, bowl, rice bowl, or salad bowl, followed by various meats, toppings, and sauces. Id. at 13. At first, the Mezeh restaurants used cast iron pots to serve the proteins, but found that they were not practical and could not keep the food hot. Now the proteins are served from stainless steel containers. ECF No. 45-5 at 9.

         The word “Mezeh” is a play on words, meant to signify the word “mezzeh, ” which, according to Mohamadi, who grew up in Afghanistan, means “taste.” ECF No. 45-4 at 5, 8. The word “mezze” and Defendants’ trade name “Mezeh” are pronounced the same. ECF No. 45-4 at 8; see also ECF No. 45-5 at 13. Defendants are the owners of United States Registration No. 4, 778, 385 for the word “MEZEH, ” though no colors or other stylization are associated with the mark. ECF No. 46-5.

         Defendants have stylized their logo to include the word “mezeh” in a lower-case font with every-other letter colored white, while both “Es” are orange. Underneath the letters “eze” is a smile-shaped curve, also colored orange. See ECF No. 45-4 at 12; ECF No. 45-5 at 8. Underneath and to the side of the word “mezeh” is the language “MEDITERRANEAN GRILL” in a smaller font with white lettering. See ECF No. 45-6. This is the logo that appears on the façade of both Mezeh locations, which use dark wood or laminate backgrounds on their signage, as shown below.[6] The same dark wood or laminate material that is used on the façade is used in the kitchen, as well. ECF No. 45-4 at 12.

(IMAGE OMITTED)

ECF No. 45-6.

         Mezeh’s logo also appears on the top of the current rendition of Mezeh’s takeout menu, which are thin rectangular cards, similar in shape to the Cava Mezze Grill takeout menus, with a black background and white and orange font colors. See ECF No. 45-9. Although the original version of Mezeh’s takeout menu, which was created by a consultant for Defendants, was a tri-fold menu using multiple colored fonts, including pink, green, orange and blue, see ECF No. 45-10 at 26; see also Id. at 14-15, Mohamadi eventually changed the takeout menu to its current rendition, ECF No. 45-4 at 22, as shown below:

(IMAGE OMITTED)

ECF No. 45-10 at 26 (original Mezeh takeout menu design); ECF No. 45-9 (current takeout menu design).

         According to Mohamadi and Walker, decisions made during the development of the Mezeh logo were made by a design consultant hired by Defendants, General Design Company, whose decisions Mohamadi and Walker deferred to. See ECF No. 45-4 at 12, 15. When Defendants started working with General Design Company, the Cava Mezze and Cava Mezze Grill websites were referenced as concepts that Mohamadi and Walker liked. See ECF No. 45-4 at 27-28; ECF No. 45-10 at 6. Although General Design Company presented Defendants with various color options for the logo, such as green, pink, and blue, see ECF No. 45-10 at 23, orange was ultimately chosen.[7] The design company brought to Defendants’ attention the fact that the Cava Mezze Grill logo uses a color somewhere on the yellow-orange spectrum, and so a darker shade of orange was ultimately settled on for the Mezeh logo.[8] Id. at 10.

         On at least some social media accounts, Mezeh uses the username “MezehGrill.” See ECF No. 45-4 at 17. Although Mezeh does not use the phrase “It’s What’s on the Inside that Counts” in any of their designs, the phrase ...


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