Goats on the Roof: Iconic Wisconsin Restaurant Wins Trade Dress Dispute

Dec 16, 2019 | Elijah B. Van Camp

If you’ve ever vacationed in Wisconsin’s Door County, you’re undoubtedly familiar with Al Johnson’s Swedish Restaurant.  More specifically, you’ve probably seen the groups of goats contentedly grazing on the restaurant’s green sod roof.  What you may not know is that the famous Door County eatery actually owns U.S. Trademark Registration No. 2,007,624 for trade dress that “consists of goats on a roof of grass.”  

On December 9, 2019, in Bank v. Al Johnson’s Swedish Restaurant (Fed. Cir. 2019), the Federal Circuit dismissed an appeal from a Trademark Trial and Appeal Board (“TTAB”) decision that addressed a challenge to Al Johnson’s mark.  The petitioner before the TTAB, attorney Todd C. Bank (“Bank”), had sought to cancel the restaurant’s registration, which the Federal Circuit referred to as the “Goats on the Roof Registration.”  

Bank asserted that the registration should be canceled as functional, “alleging that the trade dress ‘is demeaning to’ goats, which, in turn, ‘is offensive to [Mr.] Bank and denigrates the value he [and others] place [] on the respect, dignity, and worth of animals.’”  However, the Federal Circuit noted that this argument had been foreclosed by Matal v. Tam, which held that the prohibition on registration of disparaging marks under the Lanham act was unconstitutional.  

Ultimately, the Federal Circuit dismissed Bank’s appeal, holding that he lacked standing.  The court found that he had “failed to plead a real interest in the cancellation proceedings,” and that he failed to identify any interest “other than to allege that the Goats on the Roof Registration is ‘demeaning to goats’ and that the ‘respect, dignity, and worth of animals’ were affected by that alleged demeaning.”  The court also explained that Bank had failed to plead “a reasonable basis for his belief of damage.”  
In addition to dismissing his appeal, the court also ordered Bank to pay Al Johnson’s costs and attorneys’ fees, finding that his appeal was frivolous.  In this case, being stubborn as a goat was an unproductive strategy.      

About The Author

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Eli is a partner in the Madison office of DeWitt. He counsels Eminent Domain, Intellectual Property, Litigation and Intellectual Property Litigation. He can be reached by phone at 608-252-9275.

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