From IHOP to IHOB and Back Again

Last month, breakfast lovers everywhere received a scare. On June 11, International House of Pancakes, also known as IHOP, announced it was changing its name to IHOB. The “B” in the new name?  Was it short for biscuits?  Brunch?  Bacon?  Breakfast?  None of the above. The “B” is for burgers, the company revealed.

Outrage followed on social media. “I hope for IHOP’s sake the B in IHOB makes it the International House of Burgers and not the International House of Bankruptcy,” tweeted one disappointed consumer. Another added “International House of Burgers, more like bye-Hop, I’m gonna go eat somewhere that’s better.”

Other companies piled on. Asked if it was content to let IHOB “sell burgers” on your block, Wendy’s took direct aim at the late great pancake chain: “Not really afraid of the burgers from a place that decided pancakes were too hard.”  Fast food chain Whataburger tweeted “we’d never change our name to Whatapancake.”

So much for all of that. On July 9, IHOB announced it was changing its name back to IHOP. The name change was a marketing campaign designed to pique interest in IHOP’s new steak burgers. College students in search of fuel for late-night study sessions can rest easy now.

In any event, IHOP’s campaign raises some interesting trademark questions. An initial question relates to confusion. One of the theoretical justifications for trademark law is that it reduces consumer search costs. In other words, if a consumer can trust that goods and services bearing a given brand name come from a particular source, the consumer does not have to spend time verifying the supply chain. Some legal scholars have argued that not all confusion is bad or should otherwise be actionable under the law. What does the willingness of a brand owner like IHOP to create confusion among its own customer base say about this question?

Other practical questions emerge. Did IHOP’s June 11 announcement constitute an abandonment of the IHOP mark? Not under the current legal standard for trademark abandonment which requires proof of a complete discontinuation of the mark coupled with an intent not to resume use.

What about trademark applications?  A search of the United States Patent and Trademark Office’s website reveals that IHOP applied for its IHOB trademark on June 14. A third party applied for IHOB in connection with restaurant services on June 11, the same day as IHOP’s announcement of its name change to IHOB. The conflict could lead to a trademark opposition proceeding.

It would have been helpful for IHOP if it had filed trademark applications prior to any public announcement of the name change. That application would have likely saved IHOP costs related enforcing the IHOB mark against third party applications. Further, IHOP would have been well-served to reserve the domain name for itself since the website appears to currently point to another third party.

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