Ann Maher May 8, 2014, 9:58am

A decent English teacher will exhort the importance of proper apostrophe placement. And a bad grammar defense may be of little help for a defendant in a Madison County trademark suit.

“Bobbys (no apostrophe) @ (not ‘at’) Buffalo Park, Inc.” a Maryville bar, restaurant and dance lesson venue may soon be forced to take down its sign because Bobby’s Frozen Custard of Maryville says it agreed to do so following a negotiated settlement of a trademark infringement and unfair competition suit.

Madison County Circuit Judge Barbara Crowder will entertain the frozen custard plaintiff’s motion to enforce settlement on June 6.

Bobby’s Frozen Custard, represented by Robert Jackstadt of Edwardsville, sued in January. It claims Bobbys @ Buffalo Park owner Brad Menard agreed on March 14 to take down its sign within 45 days of settlement if the plaintiff paid approximately $1,600 for the cost of a new one that would not use its distinctive script and would no longer use “Bobbys” in its name. According to Bobby’s, Bobbys’ (grammatically correct apostrophe added) new sign would call the business “Brad’s @ Buffalo Park,” or simply “Buffalo Park.”

However, a non-party to the suit, Bobbys @ Buffalo Park founder, Bobby Menard, disagrees with the settlement, Jackstadt says.

“Upon information and belief, Defendant Brad Menard’s father, nonparty Bobby Menard, disagrees with the terms of the settlement and has convinced his son to back out notwithstanding the fact that Defendant Brad Menard already entered into an agreement individually and as the only corporate representative of the corporate defendant,” Jackstadt wrote in the motion to enforce. “It is too late for Bobby Menard to interfere with the agreement.”

While currently represented by Penni Livingston of Fairview Heights, Bobbys was originally represented by William Daniel of Glen Carbon, who helped arrange the settlement.

In Bobbys’ first response to the case, Daniel argued that the defendant had been using “Bobbys” on its business since Sept. 1, 1979, which was more than 13 years before “Bobby’s” logo was registered as a trademark on March 11, 1993.

“Plaintiff’s frozen custard stand is not a bar, nightclub, restaurant and does not sell dance lessons, as does Defendants’ business establishment, which is duly licensed by the Village of Maryville,” Daniel wrote early on as he sought judgment for his client.

“The Mayor of Maryville, Larry Gulledge duly approved Defendants’ business application for ‘Bobbys @ Buffalo Park.

“Plaintiff ‘Bobby’s’ does not sell alcohol beverages, or foods, other than a nice delicious variety of one product: frozen custard.

“There is no overlap between the products and services of the two businesses: ‘Bobby’s Frozen Custard’ versus ‘Bobbys @ Buffalo Park bar, nightclub, restaurant and dance lessons.

“Defendants do not sell, or offer to sell, any frozen custard.

“Plaintiff does not offer to sell any dance lessons, as do the Defendants.

“Defendant’s building is very red with adequate dim lighting.

“Plaintiff’s building is very white with bright white lighting that lights up the night sky all over Route 159 in Maryville, Illinois.

“Defendants’ patrons go inside the very red building.

“Plaintiff’s customers stand and sit on picnic table benches outside its building.”

The hearing on June 6 is set for 11 a.m.

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