“Krab mix” plausibly misleads as to crab content
Kang v. P.F. Chang’s China Bistro, Inc., 844 Fed.Appx. 969, 2021
WL 463443, No. 20-55138 (9th Cir. Feb. 9, 2021)
Plaintiff plausibly alleged that reasonable consumers “are
likely to be deceived” by defendant’s use of the term “krab mix” on its
restaurant menus, so the court of appeals reversed the district court’s holding
to the contrary. (This is consistent with trademark doctrine, which considers misspellings identical in meaning because consumers can’t necessarily spell.) Likely deception is usually a question of fact.
We certainly agree with defendant
that reasonable consumers confronted with the fanciful spelling of “krab” on
the menu would not assume they were purchasing a sushi roll with 100% real crab
meat. But the menu uses the term “krab mix,” and Kang’s allegation is that
reasonable consumers would understand that term to mean the item contains a
mixture of imitation and real crab. Because the term “krab mix” lacks any
commonly understood contrary meaning, we cannot say, in the absence of evidence
bearing on the issue, that Kang’s allegation is implausible on its face.
Although some other recent cases have relied on price
disparities to disabuse consumers of the notion that they were getting anything
real, the court of appeals also disagreed that “the relative prices of the
sushi rolls at issue would prevent a reasonable consumer from assuming they
contained some real crab.” This just couldn’t be resolved on a motion to
Also, the fact that the fanciful spelling of “krab” appears
in the ingredient list, rather than in the menu item’s name, distinguished this
case from McKinnis v. Kellogg USA, 2007 WL 4766060 (C.D. Cal. Sept. 19, 2007), which
held that the “Froot” in “Froot Loops” was not misleading in part because it
“appear[ed] in the trademarked name of the cereal, not … as a description of
the actual ingredients.” Even if other menu items listed “crab,” reasonable
consumers are not required to read the whole menu to be disabused of a
misleading impression caused by one item, any more than they are required to read
the ingredients list when the front of a package misleads.
There was a dissenter who thought this was dumb. “Consumers
understand that fanciful spellings materially change the meaning of a word.”
Interesting how the dissent knows this; the PTO isn’t so sure.