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Picnik Holdings, LLC v. Bento Picnic, LLC

United States District Court, W.D. Texas, Austin Division

June 18, 2019

PICNIK HOLDINGS, LLC, Plaintiff,
v.
BENTO PICNIC, LLC, and LEANNE VALENTI, Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for summary judgment filed by Defendants Bento Picnic, LLC (“Bento Picnic”) and Leanne Valenti (“Valenti”) (together, “Defendants”). (Dkt. 8). Also before the Court is Defendants' motion to strike certain exhibits attached as evidence to Plaintiff Picnik Holdings, LLC's (“Picnik”) response. (Dkt. 22). Having considered the parties' submissions, the record, and the applicable law, the Court will deny the motion to strike and grant the motion for summary judgment.

         I. BACKGROUND

         Picnik and Bento Picnic are Austin restaurants that both sell health-conscious offerings. Picnik was founded in 2013 as an Austin food trailer that served “wholesome and convenient food” such as “gluten-free grab-and-go breakfast and lunch items” with a focus on locally sourced ingredients. (Resp. Mot. Summ. J., Dkt. 20, at 2). Picnik opened a permanent location on Burnet Road in Austin in 2016, followed by a second food trailer and a California store in 2017. (Id.). In its self-presentation, Picnik emphasizes its drink menu, which includes butter coffee, tea, and bone broth. (Picnik Menu, Dkt. 8-1, at 39;[1] About Us, Dkt. 8-1, at 20; Product FAQs, Dkt. 8-1, at 67). Picnik also offers a variety of “100% Gluten, Corn, Peanut, and Soy Free” foods, ranging from breakfast items such as bacon-and-egg tacos and hash to lunch or dinner entrees such as soups and salads, cauliflower steak, and Thai red curry. (Picnik Menu, Dkt. 8-1, at 41-44). The restaurant's goal is to offer convenient, nutritious meals for people with common food allergies or who practice contemporary diets such as Paleo or Whole30. (Compl., Dkt. 1, at 2).

         Bento Picnic, meanwhile, was launched as a catering business in the fall of 2014 when Valenti commissioned a logo for her business, registered the domain name for her website, and started posting on the new business's Instagram account. (Mot. Summ. J., Dkt. 8, at 5). She later expanded the business to include a farmers-market tent and kiosk in 2016, followed by the restaurant that opened on East Cesar Chavez Street in 2018. (Id.). Bento Picnic's menu consists of customizable, portable boxes filled with the customer's choice of a rice, noodle or salad base; a protein; and vegetables. (Bento Picnic Menu, Dkt. 8-1, at 151). Valenti composed the menu based on the Japanese-style bento lunch after traveling to Japan in 2011 and designed the menu to comport with Japanese cooking principles. (Valenti Decl., Dkt. 8-1, at 4, 7). The menu includes certain Japanese items, such as gyoza and tamagoyaki. (Bento Picnic Menu, Dkt. 8-1, at 152). Bento Picnic serves drinks such as tea and coffee (but not butter coffee), and its meals are designed to be conveniently taken to go. (Id.; Valenti Decl., Dkt. 8-1, at 4-5)).

         Picnik believes that Bento Picnic has infringed and diluted its trademarks in violation of federal and state law.[2] Picnik's trademarks include the following registered marks:

         (Image Omitted)

         (USPTO Certificates, Dkt. 1-1). Bento Picnic, meanwhile, uses the following marks:

         (Image Omitted)

         (Mot. Summ. J., Dkt. 8, at 15). Picnik's claims, however, implicate only one of its marks (the “PICNIK mark”):

         (Image Omitted)

(Compl., Dkt. 1, at 5; Resp. Mot. Summ. J., Dkt. 20, at 6). Picnik alleges that Bento Picnic is infringing on its PICNIK mark by using “Bento Picnic” “in association with its competing restaurant services.” (Compl., Dkt. 1, at 5). According to Picnik, the two businesses are in competition because Bento Picnic provides “grab-and-go meals, as well as a traditional restaurant service that caters to those with dietary restrictions such as gluten-free, dairy-free, and Whole30 approved diets, as well as touting locally sourced ingredients.” (Id.).

         After Defendants filed their answer and before the Court set an initial pretrial conference, Defendants filed the instant motion for summary judgment. (Dkt. 8). The Court then extended Picnik's deadline to respond and authorized a three-month period for discovery related to Defendants' motion. (Dkt. 16). After conducting the necessary discovery, Picnik filed its response, (Dkt. 20), and Defendants filed their reply, (Dkt. 23). Defendants also moved to strike several of Picnik's exhibits, (Dkt. 22), but the Court will deny that motion as moot, because consideration of those exhibits would not alter the Court's resolution of Defendants' motion for summary judgment.

         II. ...


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