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Published: Sunday, 7/24/2011

Florida firm sues Wendy's for use of ad line 'You can't fake fresh'


COLUMBUS -- Wendy's use of "You can't fake fresh" in some of its ads has prompted a Florida-based restaurant chain to sue, saying the slogan is its trademarked tagline.

Phelan Holdings Inc., which owns Pincher's Crab Shack in Naples, says in court papers that Wendy's use of the slogan infringes on its trademark and causes consumers to confuse the two restaurant chains.

The company, with seven seafood restaurants in southwestern Florida, said the slogan is worth more than $2 million and is asking a judge to stop the hamburger chain, which is based in the Columbus suburb of Dublin, from using it to promote its more than 6,500 restaurants.

The lawsuit, filed this month in federal court in Fort Myers, Fla., also accuses Wendy's of violating Florida's Deceptive and Unfair Trade Practices Act.

It seeks damages and any profits or gains Wendy's might earn as a result of using the line.

Wendy's spokesman Denny Lynch did not comment on the suit other than to say in an email that Wendy's theme is "You know when it's real."

That tagline is the theme of a new ad campaign by the No. 3 hamburger chain, but images included as evidence in the Pincher's lawsuit show Wendy's employees holding signs that read, "You can't fake fresh."

Wendy's began using the "real" theme in its commercials and on its Web site last year.

Pincher's said it trademarked the slogan "You can't fake fresh" in 2004.

The company is also seeking to prevent Wendy's from using the "You can't fake real" line, noting its similarity to the trademarked slogan, the suit said.

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