Rainforest Cafe, Inc. v. Amazon, Inc., 97-459 (MJD/AJB).
| Decision Date | 30 September 1999 |
| Docket Number | No. 97-459 (MJD/AJB).,97-459 (MJD/AJB). |
| Citation | 86 F.Supp.2d 886 |
| Parties | RAINFOREST CAFE, INC., Plaintiff, v. AMAZON, INC., d/b/a Amazon Bar & Grill, a California Corporation, and Anthony E. Colagreco, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Daniel W. McDonald, D. Randall King, John L. Beard, Merchant & Gould, Minneapolis, MN, Thomas Jerome Shroyer, Paul G. Neimann, Paul Joseph Yechout, Moss & Barnett, Minneapolis, MN, for plaintiff.
Marshall Howard Tanick, Seymour J. Mansfield, Vincent John Ella, Mansfield Tanick & Cohen, Minneapolis, MN, Daniel R Kelly, Maun & Simon, Mpls, MN, Daniel E. Gustafson, Renae Diane Steiner, Karla Marie Gluek, Vincent J. Esades, Heins Mills & Olson, Minneapolis, MN, for defendants.
In 1991, Anthony Colagreco conceived of the concept for the Amazon Bar & Grill and began taking practical steps necessary to develop such concept. The first Amazon Bar & Grill opened in Santa Monica, California on October 31, 1992 as a small restaurant, designed by Franco Vecchio, on the first floor of a large office building. The grand opening was televised nationally on the "E Channel," and additional television coverage of the restaurant by "Entertainment Tonight" followed. The grand opening of a second Amazon Bar & Grill, designed by Chris Zurga, took place on June 19, 1993 on a commercial street in the Sherman Oaks area of Los Angeles and was nationally televised on the "Cable News Network." To create the rainforest ambiance, the Amazon Bar & Grill's decor included the following features: a fiber-optic star system, including shooting stars, on a domed ceiling; jungle murals with cartoon-like animals; artificial banyan trees forming a branch canopy overhead; waterfalls; a "tree hut" for live entertainment; simulated earth and rock formations; anthropological artifacts; silk flowers; jungle trees; foliage hanging from the ceiling; jungle sounds; a concrete floor; a dolphin on a pedestal; a small retail cabinet—approximately six feet by two feet—containing artifact-like items and clothes with the "Amazon" logo; an aquarium with exotic fish; and a menu with items reflecting the rainforest theme. Both restaurants had small floor plans and featured popular live adult musical acts in the evenings, thereby giving the restaurants a nightclub atmosphere and catering to an adult crowd. The Amazon Bar & Grill subsequently closed its Santa Monica restaurant in February 1997 and sold its Sherman Oaks restaurant to Chamber Gas, Inc., maintaining a license agreement with Chamber Gas, Inc. for use of the trade dress created and owned by the Amazon Bar & Grill.
The Rainforest Cafe developed from the idea of a rainforest-themed restaurant, conceived in approximately 1979 by Steven Schussler. By 1980, Schussler had registered the name "The Rainforest Cafe" with the Minnesota Secretary of State. Thereafter, Schussler began to transform his home into a prototype for the Rainforest Cafe and with a colleague began to develop a menu for the proposed restaurant. In 1987, Schussler organized the "Rescue the Rainforest Days" event at a Minneapolis nightclub in which he featured a rainforest-themed outdoor cafe, rainforest-related menu items, and a dining room decorated with rainforest foliage and waterfalls. In 1992, an investor decided to support Schussler's Rainforest Cafe concept.
In October 6, 1993, Schussler and Gregory Rothweiler and Bill Hickey of Shea Architects, Inc. ("Shea") met to discuss, among other issues related to the Rainforest Cafe's development, an upcoming "exploration trip" to the Amazon Bar & Grill in Los Angeles, during which they intended to "learn things," including "flooring, etc." Esades Aff., Exs. 17, 19. A second meeting between Schussler and Shea took place on October 12, 1993, during which "research trips" to numerous restaurants were discussed, including the trip to the Amazon Bar & Grill in Los Angeles. Esades Aff., Ex. 22. The "topics to be covered" during said trips included "product development, retail merchandising, and design issues." Id. On October 22, 1993, Schussler traveled to Los Angeles and visited the Amazon Bar & Grill. Esades Aff Ex. 9, Schussler Dep. at 134-135. Colagreco testifies that during Schussler's visit to the Amazon Bar & Grill, he carefully looked at the decor, including "[t]he trees, the foliage, the waterfalls, the bar itself, the walls," inquired as to the rainforest sounds, and, in general, "bombarded" Colagreco with questions regarding the restaurant. Esades Aff., Ex. 3, Colagreco Dep. at 305-307. During the visit, Schussler also asked Steve Cuccio, also of the Amazon Bar & Grill, for the name of the muralist who painted the jungle scene on the side of the building in which the Amazon Bar & Grill was located, and Cuccio informed Schussler that said artist was Chris Zurga. Esades Aff., Ex. 9, Schussler Dep. at 171-72. Following his visit to the Amazon Bar & Grill in Los Angeles, Schussler contacted Zurga and paid for him to fly to Minneapolis "to see if he was capable of helping us" and to "design and provide trees for the decor." Id. at 177-78; Esades Aff., Ex. 46. In November 1993, as part of their "research tour" for Schussler, representatives from Shea Architects visited Amazon Bar & Grill in Los Angeles and shared their research with Zurga. Esades Aff., Schussler Dep. at 175-76.
In approximately November 1993, Colagreco met with Lawrence D'Amato to discuss his interest in opening an Amazon Bar & Grill in Orange County, California and informed him that he was looking for investors for the project. Esades Aff, Ex. 4, D'Amato Dep. at 13-14. D'Amato testifies that he began "looking around" and "checking out demographics" in Orange County to determine an appropriate location for such a restaurant and that he provided Bill Sylvestri, another potential investor, and Colagreco with the names of real estate brokers in the area. Id. at 33-37. In early 1996, D'Amato learned that the Rainforest Cafe had signed a lease at South Coast Plaza in Orange County and thereupon expressed concerns to Colagreco regarding investing "in something that had a similar concept so close." Id. at 72. D'Amato testifies that he stated, Id. at 73. D'Amato states that an article in "Investors Business Daily" regarding the opening of the Rainforest Cafe in Orange county "was pretty much the solidification that I wasn't going to invest" in an Amazon Bar & Grill to be opened nearby. Id. at 72-73.
Similarly, in December 1994, Colagreco met with four investors to discuss opening an Amazon Bar & Grill restaurant in New York City. Esades Aff., Ex. 8, Lathrop Dep. at 12-15. Robert Lathrop, one of the four investors, testifies that the investors "were interested in furthering the discussion," as "the Amazon concept would be quite unique in New York City." Esades Aff., Ex. 8, Lathrop Dep. at 29. Lathrop testifies that some time in 1995, the four investors became aware that the Rainforest Cafe—"a similar concept"—was coming to Long Island. Id. at 31-36. Lathrop states that "when I was aware that there was a similar club coming into Long Island, the whole idea was to be ... quite different ... I ... wasn't comfortable anymore, and I pulled out." Id. at 31-36.
In 1996, Lanthrop and another investor, Joe Corallo, were still interested in the Amazon Bar & Grill and discussed with Colagreco the possibility of investing in a New Jersey location. Id. at 58-59. Again, however, Lanthrop decided not to invest in the Amazon Bar & Grill when he learned that the Rainforest Cafe was opening a restaurant across the river from the proposed location for the Amazon Bar & Grill. Id. at 61-62. Lanthrop testifies that learning of the Rainforest Cafe's opening "put a damper on it for me again" and that after "running into this issue the second time ... I just figured, forget about it." Id. at 62.
In August 1995, Edward Jankowski approached Colagreco to discuss the possibility of opening an Amazon Bar & Grill in the Fifth Avenue retail establishment housing Liz Claiborne scheduled to open in August 1996 in New York City. Esades Aff., Ex. 6, Jankowski Dep. at 12-13. Jankowski testifies that he contacted the Amazon Bar & Grill because he was looking for "something that was going to be new and unique, that no one else in New York would have." Id. at 13, 27. When Jankowski learned that another restaurant with the rainforest theme was opening in New York, he determined that "the rainforest concept is not as unique as we initially thought." Id. at 28. Jankowski and others involved in the opening of the Liz Claiborne store eventually abandoned the concept of opening a restaurant in the new retail establishing, in part because "we felt that there wasn't anything novelty enough to set Liz Claiborne Fifth Avenue store aside from other stores in the area." Id. at 37.
The first Rainforest Cafe opened at the Mall of America on October 3, 1994, and approximately twenty additional Rainforest Cafes have opened nationwide since then, including a location at South Coast Plaza in Costa Mesa, California, just south of the Amazon Bar & Grill in Sherman Oaks. All Rainforest Cafe restaurants have large floor plans and are built in or near shopping malls or major family entertainment areas, catering to families with children. Niemann 2d Aff., Ex. 1. Each Rainforest Cafe features a variety of elements comprising the rainforest decor, including; live and artificial plants and animated animals, including a fifteen-foot crocodile, a boa constrictor, butterflies with animated wings, a life-size gorilla with animated facial...
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