Recent headlines — including a Mealey’s article claiming the case was “rightfully tossed” — have misled the public. The Firehouse Subs case is still alive, with rehearing petitions pending, and new Eleventh Circuit precedent confirms why it deserves reconsideration.
In Dulcio v. Arcadis U.S. Inc. (July 28, 2025), the court held that dismissals with prejudice are improper unless amendment would be futile beyond doubt, stressing: “Where the issue of futility is close, we err on the side of generosity to the plaintiff.” That generosity was absent in the Firehouse litigation. Judge Schlesinger had already issued standing trial and mediation orders, confirming the case was moving forward, yet Judge Davis later dismissed the case outright without addressing or vacating those orders. The panel affirmed without reviewing the docket in toto or applying Dulcio.
Fraud concerns run deeper. The Department of Commerce / Office of Inspector General concluded in Investigation Case No. 19-0529 that FRG’s FIREHOUSE SUBS trademarks were obtained and maintained by fraud on the USPTO since 1995 — the entire portfolio (OIG Case 19-0529 PDF). A separate OIG report confirmed that the USPTO has no effective fraud protections in place (OIG Fraud Protection Report).
This isn’t theoretical. The fraud issue appears in active USPTO dockets, including Opposition No. 91299838 and Opposition No. 91297150. And it isn’t new. In Firehouse Restaurant Group, Inc. v. Scurmont, LLC (Calli Baker’s Firehouse Bar & Grill), Case No. 4:09-cv-00618-RBH (D.S.C.), a jury canceled FRG’s “Firehouse” mark after finding fraud on the USPTO.
As courts have recognized in In re Bose Corp., 580 F.3d 1240 (Fed. Cir. 2009), fraud and deception strike at the very heart of the trademark system. The Firehouse Subs litigation shows a pattern of fraud and white-collar crimes that cannot be brushed aside.
Disclaimer: This statement is based solely on public records, government reports, and court filings. It is provided for informational and educational purposes only, and reflects the author’s opinions on matters of public concern. It is not intended to interfere with, substitute for, or influence the outcome of any pending judicial proceedings.
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