August 8, 2010

Bill Nemitz: Monster firm bares its teeth over trademark

DAMARISCOTTA - Getting a certified letter from a lawyer is rarely a pleasant experience. But when the lawyer represents Godzilla, well, you know you're in big, big trouble.

click image to enlarge

Sarah Burnham and Jay Swett, owners of Grill Zilla BBQ in Damariscotta, are accused of trademark infringement by Godzilla's lawyers.

Shawn Patrick Ouellette/Staff Photographer

click image to enlarge

Grill Zilla BBQ in Damariscotta occupies a former Frito-Lay delivery truck that's smaller than a certain irradiated giant lizard.

Shawn Patrick Ouellette/Staff Photographer

"I don't want to hire lawyers. But I am ready to call their bluff," said Sarah Burnham. "I mean do they really want to take this fight on? Do they really want to sue us?"

Apparently so. And here's why.

For the past five years, Burnham and her husband, Jay Swett, have owned and operated a thriving lunch-and-dinner stand out of an old Frito-Lay delivery truck on Business Route 1 just north of picturesque downtown Damariscotta.

Its name: Grill Zilla BBQ.

Its motto: "So good it's SCARY!"

Its logo: A smiling green creature with a red apron who, the way Burnham sees him, is part dinosaur, part alligator and part dragon. Or, as Swett sees him, "Tyrannosaurus rex on steroids."

Either way, the lawyers for Toho Co. Ltd., a Japanese entertainment conglomerate that owns the rights to the 56-year-old movie icon Godzilla, recently took a long look at Grill Zilla BBQ and saw trademark infringement.

"Toho is concerned that your use of this character along with a name and mark which incorporate a portion of our client's famous GODZILLA mark will cause consumers to believe that there is some association with, authorization by or sponsorship by our client," wrote Jill A. Jacobs, an attorney with the Los Angeles firm Seyfarth Shaw LLP, in a letter to Swett and Burnham last March.

She was just warming up.

Jacobs wet on to request that Swett and Burnham not only deep-six their green mascot, but also stop using the name Grill Zilla "in connection with any 'lizard-like' or 'reptile-like' monsters or other monster designs or references to monsters or with any imagery or character depicted in a manner similar to the way in which Toho has depicted the GODZILLA character in its films."

Had enough? Sorry, there's more.

Lest Grill Zilla's owners not quite grasp what she's talking about, Jacobs went on the explain that Toho doesn't want to look halfway around the world to the coast of Maine and see "a colossal character; in a cityscape with the character crushing or stomping on the city, buildings, cars, people, etc.; in any other setting where the character destroys cities, villages, or mountains; where the character breathes atomic fire; or where the character emerges from the ocean, water, etc."

Noted Swett as he reviewed the letter for the umpteenth time Friday, "She's probably getting paid by the word."

For the record, Swett and Burnham insist that Grill Zilla is not, was not and never will be an imitation of the fictional monster that in 1954 arose from the radioactive rubble of post-World War II Japan and went on to star in more than three dozen films worldwide. (His mug, as his lawyer notes, also graces "a wide variety of goods and services.")

Grill Zilla, on the other hand, grew out of a "naming party" Swett and Burnham held back when they started their barbecue business -- one of the 20 or so friends who participated looked up at Swett and said, "Well gee, Jay, you're huge, you're a monster. Why don't you call it Grill Zilla?"

"We liked it because it rhymed," explained Burnham. "But we never named it after Godzilla."

Doesn't matter, at least to the lawyers.

A quick Internet search shows just how ferociously Seyfarth Shaw, which last week declined to comment on Grill Zilla, will defend Godzilla from any and all pretenders.

Back in 2002, the law firm forced the Adler Fels Winery in California's Napa Valley to stop selling "Cabzilla," a nice cabernet sauvignon that featured a menacing Godzilla on the label delicately raising a glass of the red wine with his right hand (or whatever that thing is at the end of his arm).

(Continued on page 2)

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