Watch out, Blais fans: One of Flip Burger's most popular items may be in trouble. The team behind Nutella recently sent a cease and desist letter to a small burrito chain in Boston. Boloco had been using the company's name as part of a menu item, the "Nutella Milkshake," which it's been selling for fourteen years. Atlanta's own Flip Burger, the burger joint by Richard Blais, has had a Nutella and burnt marshmallow shake on its menu since the restaurant opened on Howell Mill Road in 2008. Will the chocolate-hazelnut spread conglomerate go after them next?
Boloco's CEO told the Boston Herald that Nutella's legal team doesn't mind if the restaurant sells the product but that they "don't endorse the use of Nutella or the Nutella brand in frozen beverages." The trademark confrontation may stem, at least in part, from the fact that the brand settled a class-action lawsuit for overstating the health benefits of the spread, but it seems like Boloco didn't really do anything wrong. The burrito chain just stated (correctly) that the product was an ingredient in the milkshake. Citizen Media Law Project discovered that most courts rule that businesses "can use the trademark so long as [they] are not misleading the public into there being an affiliation between [the business] and the company, other than [their] use of the company's product in your product." This doesn't change the fact that Boloco and other local-but-growing chains—like Flip— could spend thousands of thousands of dollars in court duking it out with the condiment giant. The quick fix? Change the name of the drink. Eater Boston suggests "litigious chocolate hazelnut spread company milkshake."
Got some inside information or maybe a suggestion for a replacement milkshake should Flip's soon be taken off the menu? Send anything and everything through the tipline.
· Nutella Goes After Boloco, Small Burrito Chain, Over Milkshake [HuffPo]
· Nutella Wants Boloco to Stop Using Its Name for a Milkshake [BH]
· No No Nutella! Trademark Dispute Over Hazelnut Milkshake [CML]
· Nutella to Boloco: Cease and Desist [-EBOS-]
· All Coverage of Flip Burger [-EATL-]