Goats on the roof

I don’t know if they’re still there, but years ago, a seedy amusement part in York Beach, Maine, used to have an odd way of advertising the place.  By the side of the road, on Route One, they had two poles, topped by little wooden shacks, and connected by some sort of wobbly suspension bridge. On which – 20 or so feet above ground – walked a couple of goats.

The first time I saw the goat in the sky, I almost drove off the road.

I’ve had some boring jobs in my life, but never one quite so boring as walking back and forth, on a rickety bridge, between two wooden shacks all day.

But I, of course, am not a goat, and I suppose that the goats were rewarded with tin cans or whatever it is that goats eat.

Years later, we spent a night at a hotel in the west of Ireland that had goats cavorting around the grounds.

I stayed out of their way, as I didn’t want to get butted, nor did I want to step in anything they’d left behind even though, as I recall, goat scat is pretty rabbit-pellet-y neat.

I hadn’t thought of either set of goats in ages, but they came to mind when I read an article in the WSJ about a restaurateur in Wisconsin who’s trademarked the concept of goats grazing on a restaurant roof, and is going after others who replicate his idea – even if they’re hundreds of miles away from his place of business.

Not that I’m ever likely to find myself in Sister Bay, Wisconsin, but I do have a hard and fast rule about dining in restaurants that both serve pickled herring and have goats grazing on their grass roof. Not by the hair on my chinny-chin-chin. (Of which, at this age, I’m afraid that there occasionally is some of.)

So far, I have lived my life true to my code. I follow this rule, and, frankly, can’t conceive of breaking it.

Al Johnson’s Swedish Restaurant is likely to survive without me, of course, as it has since 1949. In fact, since it started the goats-on—the-roof gimmick nearly 40 years ago, business has flourished.

Fourteen years ago, owner Al Johnson:

…trademarked the right to put goats on a roof to attract customers to a business. "The restaurant is one of the top-grossing in Wisconsin, and I'm sure the goats have helped," says Mr. Johnson, who manages the family-owned restaurant.

Since trademarking his bleating-edge idea, Johnson has been on the lookout for anyone else using a similarly capricorny theme.

He found one in Georgia, Tiger Mountain Market, which is quite a fur-piece from Wisconsin, and, to me, at least, not likely to cause much brand confusion.

Yes, I’m sure that tourists flock to Sister Bay, Wisconsin to eat pickled herring and watch goats graze on a roof. But I find it pretty hard to believe that someone would drive 750 miles for the privilege and pleasure of so doing. So how could Johnson’s business have been harmed by someone else doing the goats on the roof thing? And – prior to the WSJ article – how could Johnson have presumed that someone hundreds of miles away would have known about his goats on the roof? 

I can see if he went after someone in Green Bay, or Sturgeon Bay, or Whatever Bay, Wisconsin.

But Georgia?

That poor guy in Georgia.

Would it have occurred to me to search out a trademark if and when I had decided to let goats graze on my restaurant’s roof?

Not very likely.

But I’m not Al Johnson, who’s suit maintained:

"Notwithstanding Al Johnson's Restaurant's prior, continuous and extensive use of the Goats on the Roof Trade Dress"—a type of trademark—"defendant Tiger Mountain Market opened a grocery store and gift shop in buildings with grass on the roofs and allows goats to climb on the roofs of its buildings."

The suit asked that Tiger “cease and desist.”

Tiger’s owner, Danny Benson, thought the suit was “ridiculous,” and believed he could have won, but he didn’t want to pay big bucks to fight it. Instead, after considering – and rejecting – the idea of pigs on the roof, Benson decided to just pay Johnson “a fee for the right to use roof goats as a marketing tool in Georgia, South Carolina, North Carolina and Tennessee.”

The Journal doesn’t mention what the fee is, but I’m sure having to pay what seems like an IP protection racket gets Benson’s goat.

Johnson now has his eye on an IHOP in Virginia that has a billboard sign that goats regularly jump onto, which has garnered the IHOP a bit of free publicity.

Mr. Johnson says his lawyer is monitoring the situation in case "they take it a step further." Lisa Hodges, who manages one of the restaurants, says she doesn't plan to intentionally use the goats for marketing. "We can't help it that they climb up there," she says.

Any business that sells food and uses goats to lure customers may be violating the trademark, says Lori Meddings, the restaurant's lawyer. "The standard is, is there a likelihood of confusion?" she says.

Hard for me to think of goats as a “lure” for much of anything, but isn’t this kind of broad.

How about goat-cheese shop?

How about a snackbar at the U.S. Naval Academy?  Isn’t the goat their mascot?

Anyway, while I find the idea of goats grazing and crapping overhead while I sup on meatballs and lingonberries less than alluring, this is a big country, and there should be plenty of room for goats on roofs without having to be so litigious about it.

Perhaps Al Johnson is considering franchising, or otherwise turning his restaurant into a chain, and wants to make sure he’s protected.

If he is considering expansion, he may be overestimating America’s appetite for herring-based restaurants with goats on the roof – despite the fact that goats on the roof does appear to have some traction in the South, and is also used in the UK and Canada. (I, apparently, don’t get out enough.)

Of course, now that he’s gone national with the WSJ article, Johnson will now be able to maintain that any goats on the roof  - anytime, anywhere – will be confused with his place. (Although there may not be that much of an overlap between WSJ readership and fans of goat-roofed restaurants.)  But with his litigiousness, he may end up taking a hit on the nice guy image that having a goat-roofed restaurant conveys. No three-star Michelin Guide snobbery here. No sirree-Bob. Just down home folks.

Well, not so fast. That’s down home folks with a big-city lawyer and the urge to sue.

With apologies to my friends who happen to be lawyers, “nice guy” and “sue the bastards” don’t tend to get coupled in word association games.

Meanwhile, Al Johnson may well find that what goes around comes around.

Last year, on of his goats fell off the roof.

No one was injured, but, let’s face it.

As Al Johnson well knows, it’s a litigation-happy world.

Even the niciest of nicey-nice tourists might decide to sue if they ended up wearing a falling goat around their neck. Whiplash! PSTD! Alienation of affection! Sleepless nights. Fear of goats on roofs. Fear of pickled herring.

Who knows what ill catching a falling goat might cause. 

There’s plenty of ways that this could end up as a see-you-in-court kind of thing, no?

Baaaaaahhhhhhhhhhh.