Update: Preliminary Injunction Granted in Case of Feuding Fletchers and their Corn Dogs

Who can trade on a family’s famous name? On January 17, 2020, the U.S. District Court for the Eastern District of Texas granted a preliminary injunction against Defendants from using a trademark deemed “confusingly similar” to that of the Plaintiffs in the same line of business. The case before the Eastern District of Texas, Fletcher's Original State Fair Corny Dogs, LLC v. Fletcher-Warner Holdings LLC et al, is one of two rival corn dog companies, both family-run, by members of the same family.

Plaintiff Fletcher’s Original State Fair Corny Dogs is a family business that claims to be the original inventors of the state fair classic: a corn dog on a stick. Fletcher’s Original sells their Corn Dogs annually at the State Fair of Texas, and have been since 1942. The current version of the mark has been in use since the 1980s. The company has also sold the Corn Dogs at a number of sporting events and local festivals. While the trademarks were at one time owned by the Tyson Foods corporation, the rights to the marks have since reverted back to Fletcher’s. It is today a family-run business by descendants of their founders, Neil “Fletch” Fletcher Sr. and Carl Fletcher.

Defendant Fletcher-Warner Holdings LLC, started by two members of the Fletcher family, entered the corn dog scene in February 2019, with their new brand, Fletch. The lawsuit alleges that they have chosen a name runs a high risk of actual confusion with the Fletcher’s Original mark, as the term “Fletch” would seem to merely be an abbreviation of the name “Fletcher.”

Fletch alleges their brand is substantially different from that of Fletcher’s Original. They claim not to be corn dog vendors, “purveyors of fine stick food.” They claim a wider selection of menu offerings, and significant variation in the branding and ambience of their company.  

Ultimately, Fletcher’s Original arguments on the high probability of confusion were found to be more persuasive. The court granted a preliminary injunction against Fletcher-Warner Holdings LLC, enjoining them from use of “Fletch” and related marks. In the Order, the court considered many factors, including the fact that that both marks derive from the same family name, and are both being used to sell corn dogs in similar venues, and that the brand has a strong secondary meaning in Texas. The court also considers that Fletch’s emphasis on “family legacy” creates a compelling case of confusion as to affiliation, as anyone familiar with Texas Corn Dogs would assume that this “family legacy” refers (and in fact does refer) to the same family behind Fletcher’s Original.

Ultimately, this case demonstrates the limits of one’s ability to trade off the fame of the family business and name. Blood might be thicker than water, but neither can supersede the rights and protections of a Trademark owner in their mark.