Five Guys embroiled in legal battle with architect firm over restaurant design rights

By D.M. Herra | Dec 5, 2018

Michael Rivera [CC BY-SA 4.0 (], from Wikimedia Commons

Burger joint Five Guys is embroiled in a legal battle with an architectural firm over whether the restaurant had the right to reuse the firm’s copyrighted designs for locations outside of its contract.

Architect Soos & Associates Inc. says it entered an agreement in 2008 to design 95 Five Guys locations in Illinois and Wisconsin. Each of the sites had its own similar but unique design, and each was subject to a construction agreement stating that Soos owned the copyright to all design materials and that Five Guys had a one-time, site-specific license to use the plans for that restaurant.

Realizing that all of the restaurants should share common branded themes, Soos said its agreements stated that the projects would be iterative, but that only Soos could reuse portions of one design in creating another.

According to the lawsuit, Five Guys and DXU Architects copied and pasted sections of the Soos plans directly into new architectural drawings for new restaurants besides the 95 Soos had been contracted to design.

The new restaurants are more than just similar, Soos said; their construction documents not only contain copies of Soos drawings, dimensions and schedules, but mimic Soos’ documents down to font and page layout.

In a series of back-and-forth amendments, Five Guys asserted it had an implied license to use the materials because Soos uploaded them to a file-sharing website. The restaurant pleads a course of performance defense that claims when Soos uploaded the samples to the website, it implied Five Guys and its other architects could use the samples as points of reference that would allow them to create derivative plans.

According to Soos, its agreement with the burger chain allowed Five Guys to view and download files saved to the site, but did not permit them to paste them into new plans designed by outside architects.

Soos rejects any claims of implied license or any suggestion that it was aware of and complicit in Five Guys’ reuse of its material. The architect claims Five Guys had thousands of unambiguous admonitions against reusing the material – every page of every construction document contained a copyright notice that specifically said materials could not be reused on another project, even as a point of reference or example.

Five Guys also argued that the allegedly copied designs were not actually lifted from Soos construction documents but from a Five Guys corporate standards guide. In a motion to strike and dismiss Five Guys’ affirmative defenses and counterclaims, Soos says there is no such guide. It claims the documents Five Guys is holding up to the court as standards are simply pages lifted from construction agreements, all of them containing the copyright notice.

The firm proposed creating a guide, but the proposal was never executed, it says. Even if the proposal, introduced into evidence by Five Guys, had been executed, Soos claims it offers to provide “typical” layouts and construction details Five Guys and other parties could view and download, but had no language permitting the standards material to be used by architects other than Soos.

Soos is demanding a jury trial.

Soos is represented by Kevin Tottis and Monica L. Thompson of Tottislaw of Chicago.

Five Guys Enterprises LLC is represented by Kenneth S. Ulrich and Robert D. Leighton of Goldberg Kohn Ltd. of Chicago.

Five Guys Operations LLC is represented by Jerry William Boykin, Kandis M. Koustenis and Bret C. Marfut of Protorae Law PLLC of Tysons, Virginia.

DXU Architects and architect Eric Styer are represented by Matthew P. Connelly and Brandon A. Carnes of Rock Fusco & Connelly LLC of Chicago.

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Organizations in this Story

Goldberg Kohn Kenneth S. Ulrich Kevin Tottis Monica L. Thompson Rock Fusco & Connelly, LLC Tottislaw U.S. District Court for the Northern District of Illinois

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