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Did Lion's Tap lose slogan to Hamburglar?

The Eden Prairie restaurant has set its sights on McDonald's in a lawsuit alleging trademark infringement.

By Herón Márquez Estrada

October 16, 2009 at 4:46AM

The Lion's Tap in Eden Prairie is famous for its hamburgers, especially the Double California Burger with cheese. (Star Tribune/The Minnesota Star Tribune)

Who's your lawyer?

That's the question being asked by Eden Prairie's Lion's Tap restaurant, which has filed a whopper of a lawsuit against McDonald's, the largest food-service retailer in the world, alleging trademark infringement.

So where's the beef?

The Lion's Tap -- with only one outlet -- filed the suit over McDonald's usage of the slogan "Who's Your Patty?" in the Fortune 500 company's ongoing multimillion-dollar ad campaign for its new Angus burger.

"In a move worthy of the Hamburglar or Captain Crook, McDonald's recently started utilizing Lion's Tap's 'Who's Your Patty?' trademark," the lawsuit alleges. "Lion's Tap is forced to 'grimace' and commence this lawsuit to protect its valuable 'Who's Your Patty?' trademark."

McDonald's, based in Oak Brook, Ill., has not responded to the complaint, filed Aug. 28 in Minneapolis federal court. But in an e-mail Thursday, McDonald's said "we are working to resolve this matter and find an amicable resolution."

"Beyond that, it would be inappropriate to further speculate or comment on pending legal matters," said Greg Miskiel, a McDonald's representative.

The company also refused to address the possibility that, as part of the settlement, it will cease using the slogan by the end of this month. "Our statement stands as is," said McDonald's spokeswoman Ashlee Yingling.

"We want our trademarks," said Bert Notermann, who has owned the Lion's Tap with his wife, Bonnie, since the mid-1970s. "Hopefully, we're gonna get it settled."

The Lion's Tap says it has been using the phrase for at least four years and has had it trademarked in Minnesota. It also has a federal trademark application submitted.

"We've used it in our gift cards, all of our advertising, our big promotions," Bert Notermann said. "That is one of our signature trademarks."

In 2005, the company started developing strategies to capitalize on its local fame and begin franchising itself, although it has a long way to go to catch McDonald's, with its more than 31,000 restaurants in almost 120 countries worldwide.

Bert Notermann said part of that expansion strategy was coming up with the "Who's Your Patty?" slogan to better brand the company.

"It's kind of catchy, isn't it?" he said. "We sell T-shirts all over the nation with people wanting 'Who's Your Patty?'"

Food fight

The food fight began in August after the Notermanns noticed the slogan on McDonald's billboards near the Lion's Tap on Flying Cloud Drive in Eden Prairie.

"A lot of our customers were quite confused, so I'm sure it had an impact on us," Bert Notermann said.

Such an impact that in their lawsuit the Notermanns say they are seeking to recover not only their attorney's fees and lost profits but also damages that are "triple the amount of McDonald's profits" generated by the new ad campaign.

The Notermanns said they are confident they will prevail against "Goliath" -- a term they use for McDonald's in their lawsuit. In fact, the first line of the suit states: "This is a case of David versus Goliath."

"Hopefully this will be settled in a couple of days," Bonnie Notermann said.

Michael Lafeber, the couple's lawyer, said negotiations are continuing with McDonald's and that no settlement has been reached.

But he, too, is confident. "They have trademark rights in 'Who's Your Patty,' and they've had trademark rights for a long time."