Ketchup Yes, But Hold the TRO

A beef over an advertising campaign by one of two Chicago hot dog makers can wait until trial to resolve, a federal court has found.

Vienna Beef, Ltd. wanted a temporary restraining order issued against its competitor Red Hot Chicago, Inc. to prevent the competitor from advertising that its hot dog recipe is “a family tradition since 1893” and from using the phrases “Make me one with everything” and “Drag it through the garden.”

Vienna Beef was founded as the Vienna Sausage Manufacturing Company after Austro-Hungarian immigrants sold sausages made from their family recipe at the 1893 Columbian Exposition in Chicago.  A former employee of Vienna Beef, who is also the grandson of one of Vienna Beef’s founders, started Red Hot 25 years ago after a three-year non-compete expired.

Vienna Beef sued Red Hot and its founder Scott Ladany to stop them from claiming that their recipes date back to 1893, implying that they have an affiliation with Vienna Beef, and from using slogans similar to those used by Vienna Beef.  The complaint also sought a temporary restraining order while the case was heard.

The court found that Red Hot had been using some of the advertising slogans for over eight years.  Vienna Beef failed to show it would suffer any irreparable harm if no restraining order was issued while the case was pending.  The court found that the advertising “has been in use for years and thus this Court fails to see the emergency necessitating a TRO.” Therefore, entering a TRO “would in fact alter the status quo rather than maintain it to prevent harm to the parties.”

Vienna Beef, Ltd. v. Red Hot Chicago, Inc. and Scott D. Ladany, N.D. Ill. No. 11 C 3825, issued June 21, 2011.