Wa Wa and the Attack on Small Business

By Charles P. Castellon, Esq.

Small business has long been the heart of our nation’s economy. For years, however, giant national and global companies have taken a greater market share and made it more difficult for mom and pop businesses to survive. We’ve all seen independent retailers and hardware stores close down following a Wal Mart or Home Depot coming to town and many other similar examples.

In recent years, grass roots movements have gained traction in an effort to reverse the trend. During the Christmas shopping season, we now have “Small Business Saturday” following “Black Friday.” Despite these grass roots efforts, it remains a struggle for small business to compete with big money. There is one recent case that shows how vulnerable the moms and pops are even when they’re not trying to compete with large companies.

Yogi Patel represents the American dream so many hard-working immigrants have come here to follow. Yogi owns an Indian restaurant located in the tourist corridor of Highway 192 in Kissimmee, near Celebration. His life story is typical of so many immigrants. He has a long entrepreneurial history and has been an active member of his church in both New York and Florida. His current business is the Indian restaurant, called Wa Wa Curry.

Late in 2014, Yogi began his suffering at the hand of big business. This is when the gas station and convenience store chain called Wa Wa determined that Yogi’s restaurant was a threat. Wa Wa, the convenience store chain, has headquarters in Pennsylvania and a strong presence throughout the mid-Atlantic states. Recently, Wa Wa has established a foothold in Florida and is expanding rapidly. There was no Wa Wa convenience store in Central Florida when Yogi opened his restaurant, but the larger company has determined that Kissimmee is not big enough for two Wa Was.

Wa Wa the larger began asserting its strength by sending Yogi a “cease and desist” letter directing him to change the name. This initial demand was soon followed by a federal lawsuit for trademark infringement seeking money damages in addition to the name change.

To defend his rights, Yogi retained the firm of Widerman Malek Celebration Law Office and its of-counsel attorney, Cliff Geismar. Following talks between Yogi’s small firm legal team and Wa Wa’s large national law firm, it became clear that Yogi could not take on this fight. Yogi soon realized that he didn’t have the guns to take on such a big company and its apparently unlimited resources to litigate the case. Had Yogi fought back and eventually won, he would have likely found himself many thousands of dollars poorer from years of fighting a federal lawsuit while Wa Wa would have barely seen a dent in its bottom line. Based on this realization, Yogi settled and agreed to change the name.

Yogi’s case bears some similarity to a recent mayonnaise fight. Unilever, the multi-national corporate giant who owns the Helman’s brand, challenged a upstart company’s right to use the term “mayonnaise” in a no-egg product called “Just Mayo.” After a flood of ridicule and negative publicity, Unilever dropped the case. Unfortunately for Yogi, his case failed to generate enough media interest to convince Wa Wa to back down.

One lesson for small business owners to take away from the Wa Wa case is to get good legal advice on intellectual property issues. Small businesses tend to overlook the importance of protecting their rights to assets such as business names, logos, slogans and other similar fruits of their labor. With awareness, due diligence and expert advice, entrepreneurs can use for their benefit all the protections available from patent, trademark and copyright laws as well as take action to protect themselves against legal attacks like the one Yogi suffered.

In Yogi’s case, a trademark search would have revealed that the Wa Wa name was protected, regardless of the reality that he posed absolutely no threat of competition to the Pennsylvania company owning the rights and operated under the name in the local market long before the convenience store muscled in. Other business owners should properly stake out their claims to all their intellectual property and make sure they aren’t violating any other business’ rights before finding themselves tangled in costly litigation.