State barber board wins battle against "Barber Shop" bar

Really wanted a Sweeney Todd reference here but couldn't figure it out.

Osteria Segreto, LLC v. Hilgers, No. 8:26-cv-00065-BCB-MDN (D. Neb. Apr. 20, 2026)

Osteria Segreto, formerly “an Italian speakeasy” in a space that had once been a hair salon, restyled itself as “a barber shop themed bar” named “The Barber Shop Blackstone.” It was surprised to discover the Nebraska Barber Act, which among other things prohibits businesses from using the title of “barber” or “barber shop” or displaying a “barber pole” without a state-issued license to practice barbering. The court refused to enjoin enforcement of the law, finding that this was a regulation of deceptive commercial speech.

The Bar’s logo is a monochromatic barber pole with the name “The Barber Shop” and the tag line, “Where the Buzz is Real.” It’s accessed “through a back-alley door tucked between a wall and a wood fence that is adorned with a small [red, white, and blue] barber pole.”

entrance

logo

Patrons enter a small anteroom, where they “see a lone vintage barber chair, a barber pole, and small television that displays a history of barbering,” and “[a] bouncer greets customers, checks their IDs, and allows them through a hidden door into the bar.” According to the plaintiff, “[t]he walls are filled with historical pictures of barbers and barbering tools. The bar is dimly lit, but at the end of the narrow space is a small seating area next to a floor-to-ceiling light installation designed to mimic the banded lights of a barber pole.” The menu includes drinks called “the ‘Scotch and [Scissors],’ the ‘Classic Cut Old Fashioned,’ and the ‘Barber’s Flight.’”

grand opening ad showing entrance and promising guest barbers

more social media

The bar advertised for a grand opening that mentioned “5 cabinet giveways [sic], secret menu, drink specials, and special guest barbers!”

The Board claimed rights in a “mark” registered with the state in barber poles, defined as “spiral stripes, red, white, and blue or any combination of them.” A state AG pointed out in earlier correspondence:

While the barber pole which you seek to use for the collective mark has been associated with barbers since the Fifth Century, A.D., there still may be some problems with enforcement of the logo exclusively for licensed barbers in this State. When a word or symbol has been in the public domain for a period of time, it is no longer susceptible to exclusive appropriation.

But, the AG continued, maybe it could still serve as a collective mark. The Board doesn’t charge a licensing fee for use of the “mark,” but has issued express consent for approved barber schools to use its barber pole “registered service mark.”

A licensed barber in the State of Nebraska who worked in the Blackstone District (nearby) complained to the Board: “I’m not sure if they are going to be actually cutting hair but they mentioned guest barbers. The whole theme of this place is so disrespectful to the trade I wish people would stop making money off of it because it’s a cool idea.” Then the Board started going back and forth with the bar, claiming both “trademark” rights and exclusivity according to the Barber Act. The bar disavowed any intent to provide barber services, but wanted to use the name and barber pole.

First, the court declined to address any trademark claim by the Board for purposes of the motion. JDI didn’t hold, as the Board argued, that trademark law always “prevails” over the First Amendment, particularly “where, as here, a state actor attempts to regulate commercial speech by asserting a trademark.” Not only were there some pretty serious doubts over the validity of the putative “mark,” but “when the Supreme Court has addressed regulation of commercial speech by governmental entities, it has applied the intermediate scrutiny test from Central Hudson.” (As for those doubts—the Board registered a service mark, not a certification mark, and it never registered “barber shop” as any kind of mark. And there was a reasonable argument that any claim in “barber shop” or “barber pole” was invalid for genericity or descriptiveness.)

Fortunately for the Board, its regulation survived Central Hudson. The state regulated barbers for public health/safety reasons and required them to be licensed as barbers before offering barbering services or holding themselves out as barbers. The law specifically barred the “display [of] a barber pole or use [of] a barber pole or the image of a barber pole in … advertising” without a license.

If commercial speech is inherently misleading, it gets no First Amendment protection. That was likely the case here, the court found. At plaintiff’s bar, “patrons first encounter a fully equipped barber service station with a service mirror, tools, and capes used in barbering.” The name “The Barber Shop Blackstone” was inherently misleading, “carrying no indication that the business is a bar not a barbershop, and using a logo with a barber pole that is exclusively associated with barbering.” The slogan “Where the Buzz is Real” didn’t help; nor did the reference to “special guest barbers” in the grand opening advertisement.

Osteria Segreto relied on the (bad) decision in Express Oil Change, L.L.C. v. Mississippi Bd. of Licensure for Pro. Eng’rs & Surveyors, 916 F.3d 483 (5th Cir. 2019), in which the court ruled that automotive service centers operating under the name “Tire Engineers” couldn’t constitutionally be held liable under state law restricting the use of the term “engineer.” The Fifth Circuit found that, because “engineer” “can mean many things in different contexts,” it was not inherently misleading, despite the state’s survey finding a very high percentage of consumers were deceived.

Somewhat in contradiction to the idea of arbitrary trademarks, the court here ruled that “nothing suggests that ‘barber’ or ‘barber shop’ can mean many things in different contexts,” so the terms could only mean licensed professionals. (And Apple can only mean fruit?) State law defines “barber shop” “expressly—and narrowly”—as “an establishment or place of business properly licensed as required by the act where one or more persons properly licensed are engaged in the practice of barbering.” And the contextual factors here reinforced that, including the logo, so the name and logo “inevitably will be misleading” as to the services available to customers:

The Court would not hesitate to hold that calling a bar “The Hospital Blackstone,” “The Doctor’s Office Blackstone,” “The Law Office Blackstone,” or “The Department of Motor Vehicles Blackstone” would be inherently misleading.

The remaining context didn’t help, as noted above. “There is an inevitably misleading inference that ‘The Barber Shop Blackstone’ provides barbering services although it may also provide alcoholic beverages—even if there is no evidence that anyone was actually deceived about the services or goods provided. The parties do not dispute that there are barber shops that also have liquor licenses.”

Although technically Central Hudson analysis can simply end if the regulated commercial speech is inherently misleading, the court considered the other prongs. The only serious challenge was to the regulation’s tailoring. Central Hudson requires a restriction to “directly advance” a “substantial” governmental interest. “Restricting unlicensed entities from using ‘barber shop’ and a ‘barber pole’ in their advertising plainly provides effective support for and directly advances the government’s purposes of protecting both ‘the interest of public health, public safety, and the general welfare’ and ‘the skilled trade of barbering and the operation of barber shops [that are] affected with a public interest.’” Although the existence of less restrictive alternatives is relevant, intermediate scrutiny doesn’t require a perfect fit, and the fit here was reasonable.