CLEVELAND, Ohio – City Barbeque, a Columbus-based chain restaurant with more than 50 locations across eight states, filed suit against Cleveland’s locally owned Ohio City BBQ to force the restaurant to change its name and fork over some of its profits.
Lawyers for City Barbeque, who in May filed a trademark infringement lawsuit against Ohio City BBQ, filed an amended complaint this month that says the standalone Cleveland joint’s owners conspired to defame the chain by having someone post a pseudonymous online review of each of the chain’s locations that mentioned the lawsuit.
City Barbeque wants a chance to convince a jury in U.S. District Court in Cleveland that Ohio City BBQ should have to pay the chain actual and punitive damages, court costs, attorney fees and “profits from the sale of infringing goods and/or services.”
City Barbeque owns trademarks of the name “City Barbeque” and two logos bearing the name. However, it does not claim to own a trademark of “City BBQ,” according to court filings. The restaurant chain did not expand into Cleveland until 2019, two years after Ohio City BBQ first fired up its smoker on Lorain Avenue in the city’s Ohio City neighborhood.
Still, the chain accused Ohio City BBQ of continuing to “willfully deceive customers” into thinking that the two restaurants are affiliated. As proof of its claim, the lawsuit says that some customers have called City Barbeque thinking they were calling Ohio City BBQ.
The suit also cites potential confusion on third-party food vendor apps and websites that exploded during the coronavirus pandemic.
“As a result of Ohio City BBQ’s misconduct, City Barbeque’s goodwill has been damaged,” the lawsuit said.
U.S. District Judge James S. Gwinn is overseeing the lawsuit.
Ohio City BBQ owner Nav Singh did not return a voice message. An email seeking comment from City Barbeque’s corporate headquarters in Dublin on Thursday was not returned.
Singh, a Toronto native, told cleveland.com previously that he moved to Cleveland with dreams to open a pizza shop but fell in love with American barbecue. He traveled the country to barbecue competitions, found a pitmaster, bought a building in Cleveland’s Ohio City neighborhood and opened up Ohio City BBQ in May 2017.
City Barbeque founder and CEO Rick Malir, a Kansas City native, opened the first restaurant in the Columbus suburb of Upper Arlington in 1999 after catering out of his garage, he said in a video on the company’s website. The chain, now headquartered in Dublin, first trademarked its name in 2005 and has grown to 53 locations in eight states, from Wisconsin to Florida.
Malir is also on the Ohio Leadership Council of the Small Business Administration, a national lobbying group for a small and independent business that calls itself “the voice of small business.”
Malir told Forbes magazine in an interview published in February 2019 that City Barbeque was fresh off a 32 percent growth in earnings and was “growing at a 20 percent to 25 percent growth rate a year.” He went on to say that one of the keys to the company’s success was “strengthening the brand, to be the premiere BBQ company,” the magazine reported.
Lawyers for City Barbeque began contacting Ohio City BBQ in 2017, trying to get its leaders to change its name, citing the future “inevitable confusion” of customers who will see Ohio City BBQ and think the popular chain in Columbus was opening its first Cleveland-area restaurant.
The outreach continued into February 2019, when the lawyers sent Ohio City BBQ co-owner Chris Abatsas a letter and a draft agreement in which Ohio City BBQ agreed to change its name, the lawsuit said.
A few days later, the lawyers received the agreement back in the mail. Someone ripped the pages in half and wrote on the back of a page in all capital letters, “stop f—–g sending me this s–t or I’ll sue for harassment,” the lawsuit said.
The lawsuit said that people started calling the newly opened City Barbeque restaurant in 2019 when they meant to call Ohio City BBQ.
The lawsuit also points to a Yelp reviewer who City Barbeque claims “explicitly identified the confusion created by Ohio City BBQ’s inferior restaurant.” The woman said she was disappointed in Ohio City BBQ and named other barbecue restaurants in Cleveland she said were better, including “the Columbus-based City Barbecue (not to be confused with Ohio City BBQ).”
The suit does not name any other instances of people confusing the two restaurants as affiliates.
The suit picked out a handful of other negative Yelp reviews that Ohio City BBQ received to argue that the Ohio City restaurant did not meet City Barbeque’s standards, and City Barbeque would suffer due to the confusion.
Ohio City BBQ has a 4-star rating on Yelp as of Thursday. City Barbeque’s Strongsville and Beachwood locations both have 3-star ratings as of Thursday.
City Barbeque’s lawyers said they continued trying to contact Ohio City BBQ about a name change, but Ohio City BBQ would not negotiate, the suit said. So they filed suit in May.
City Barbeque also owns restaurants in other states where barbecue restaurants have similar names but have not resulted in litigation. The chain opened its first North Carolina restaurant in 2014. The New City BBQ and Surf City BBQ were already operating. Apple City BBQ also operates a smokehouse in the state that opened in 2017.
The Columbus Dispatch reported on the lawsuit in a story published online on May 24. The next day, a Yelp reviewer under the name “Josh M.” posted the same 1-star review on all 53 locations of City Barbeque’s pages.
The review called City Barbeque as “some Rich Elite” and accused them of suing Ohio City BBQ for using the name “Ohio City,” according to copies of the review attached to the lawsuit and viewed on Yelp. The user called the lawsuit “disgusting.” The review also cited an actual 2020 Yelp review of City Barbecue’s Beachwood location where a woman said she found a snail shell in her collard greens before concluding, “Shame on City Barbeque and its owner, Rick Malir.”
Four other people posted 1-star reviews of City Barbeque’s Ohio locations over the following two days that mentioned the lawsuit. Two of them claimed to have eaten City Barbeque’s food.
A City Barbecue employee replied to the 1-star reviews that the company respects small businesses.
“There is some confusion in the marketplace between our two companies, and it would be beneficial for both of us to have a clearer distinction in names,” the employee wrote. “We have offered to assist Ohio City BBQ financially in modifying their name – we want them to succeed.”
In the amended complaint, City Barbeque claims that “upon information and belief,” the posters acted in association with Ohio City BBQ to launch a social media campaign to defame City Barbeque. The suit says that neither of the reviewers who claimed to have eaten the food visited a City Barbeque the day of the review, even though the reviewers did not say they did.
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