"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 (9^th 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 dismiss.

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.