U.S. District Judge John Tharp dedicated 10 pages to resolving one of society's greatest problems: aren't boneless wings just chicken nuggets? His answer favored Buffalo Wild Wings, sued for marketing the latter as the former: sure they are, but it doesn't matter because the words mean nothing. The sports bar chain may continue to use the term on its menu and in marketing campaigns.
Despite his best efforts, Halim did not "drum" up enough factual allegations to state a claim. Though he has standing to bring the claim because he plausibly alleged economic injury, he does not plausibly allege that reasonable consumers are fooled by BWW's use of the term "boneless wings."… although it is difficult to imagine that Halim can provide additional facts about his experience that would demonstrate that BWW is committing a deceptive act by calling its nuggets "boneless wings," but the Court will give him leave to try.
The judge, however, does cite in passing a similar but more ominous case in Ohio, where the State Supreme Court ruled that boneless wings could contain bones. Unlike the judges in Ohio, Tharp isn't trying to choke you to death. But it would be nice if words meant things.
Cauliflower wings are sold at BWW, under the "wing" section of the menu, and are presented as an alternative to chicken wings. If Halim is right, reasonable consumers should think that cauliflower wings are made (at least in part) from wing meat. They don't, though. Even Halim concedes that point, saying that "'cauliflower wing' is clearly a fanciful name because cauliflowers do not have wings." … This
Court agrees. "Boneless wing" is also clearly a fanciful name because chickens do have wings,
and those wings have bones.
But wings are deboned for consumption, so "boneless wing" isn't fanciful in any culinary sense, let alone the substitutional one of "cauliflower wing." That term would always be metaphorical, unless the cauliflower was somehow pressed by chef Da Vinci into the form of an actual wing.
As the Ohio Supreme Court recently put it, "[a] diner reading 'boneless wings' on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings, just as a person eating 'chicken fingers' would know that he had not been served fingers
But "fingers" is a figurative noun, while "boneless" is an adjective. This is why diners know they're not eating literal fingers, yet expect "boneless" to actually describe the food. If "boneless" were a noun, they would order "bonelesses." But they don't, because it isn't.
The deep-fried analogies don't really matter, though, to the legal analysis, which is about commercial terms of art aligning with reasonable consumer expectations. I think what the judges are telling us is that when you eat out at places with names like Big Buffalo Bubba's House of Wing Dings you knew you were going to be fed shit, so now you can eat it too.
Tharp's order is full of amusements like "What's in a name? If we called a wing by any other name, would it smell as sweet?", "BWW's boneless wings failed to "meat" expectations," "Halim sued BWW over his confusion, but his complaint has no meat on its bones," and so on.
Aimen Halim v. Buffalo Wild Wings [PDF, hosted by Courthouse News]
