Really wanted a Sweeney Todd reference here but couldn’t figure it out.

Osteria Segreto, LLC v. Hilgers, No. 8:26-cv-00065-BCB-MDN
(D. Neb. Apr. 20, 2026)

Osteria Segreto, formerly “an Italian speakeasy” in a space
that had once been a hair salon, restyled itself as “a barber shop themed bar”
named “The Barber Shop Blackstone.” It was surprised to discover the Nebraska
Barber Act, which among other things prohibits businesses from using the title
of “barber” or “barber shop” or displaying a “barber pole” without a
state-issued license to practice barbering. The court refused to enjoin
enforcement of the law, finding that this was a regulation of deceptive
commercial speech.

The Bar’s logo is a monochromatic barber pole with the name
“The Barber Shop” and the tag line, “Where the Buzz is Real.” It’s accessed
“through a back-alley door tucked between a wall and a wood fence that is
adorned with a small [red, white, and blue] barber pole.”

entrance

logo

Patrons enter a small anteroom, where they “see a lone
vintage barber chair, a barber pole, and small television that displays a
history of barbering,” and “[a] bouncer greets customers, checks their IDs, and
allows them through a hidden door into the bar.” According to the plaintiff, “[t]he
walls are filled with historical pictures of barbers and barbering tools. The
bar is dimly lit, but at the end of the narrow space is a small seating area
next to a floor-to-ceiling light installation designed to mimic the banded
lights of a barber pole.” The menu includes drinks called “the ‘Scotch and
[Scissors],’ the ‘Classic Cut Old Fashioned,’ and the ‘Barber’s Flight.’”

grand opening ad showing entrance and promising guest barbers

more social media

The bar advertised for a grand opening that mentioned “5
cabinet giveways [sic], secret menu, drink specials, and special guest
barbers!”

The Board claimed rights in a “mark” registered with the
state in barber poles, defined as “spiral stripes, red, white, and blue or any
combination of them.” A state AG pointed out in earlier correspondence:

While the barber pole which you
seek to use for the collective mark has been associated with barbers since the
Fifth Century, A.D., there still may be some problems with enforcement of the
logo exclusively for licensed barbers in this State. When a word or symbol has
been in the public domain for a period of time, it is no longer susceptible to
exclusive appropriation.

But, the AG continued, maybe it could still serve as a
collective mark. The Board doesn’t charge a licensing fee for use of the “mark,”
but has issued express consent for approved barber schools to use its barber
pole “registered service mark.”

A licensed barber in the State of Nebraska who worked in the
Blackstone District (nearby) complained to the Board: “I’m not sure if they are
going to be actually cutting hair but they mentioned guest barbers. The whole
theme of this place is so disrespectful to the trade I wish people would stop
making money off of it because it’s a cool idea.” Then the Board started going
back and forth with the bar, claiming both “trademark” rights and exclusivity
according to the Barber Act. The bar disavowed any intent to provide barber
services, but wanted to use the name and barber pole.

First, the court declined to address any trademark claim by
the Board for purposes of the motion. JDI didn’t hold, as the Board
argued, that trademark law always “prevails” over the First Amendment,
particularly “where, as here, a state actor attempts to regulate commercial
speech by asserting a trademark.” Not only were there some pretty serious doubts
over the validity of the putative “mark,” but “when the Supreme Court has
addressed regulation of commercial speech by governmental entities, it has
applied the intermediate scrutiny test from Central Hudson.” (As for
those doubts—the Board registered a service mark, not a certification mark, and
it never registered “barber shop” as any kind of mark. And there was a
reasonable argument that any claim in “barber shop” or “barber pole” was
invalid for genericity or descriptiveness.)

Fortunately for the Board, its regulation survived Central
Hudson. The state regulated barbers for public health/safety reasons and
required them to be licensed as barbers before offering barbering services or
holding themselves out as barbers. The law specifically barred the “display [of]
a barber pole or use [of] a barber pole or the image of a barber pole in …
advertising” without a license.

If commercial speech is inherently misleading, it gets no
First Amendment protection. That was likely the case here, the court found. At plaintiff’s
bar, “patrons first encounter a fully equipped barber service station with a
service mirror, tools, and capes used in barbering.” The name “The Barber Shop
Blackstone” was inherently misleading, “carrying no indication that the
business is a bar not a barbershop, and using a logo with a barber pole that is
exclusively associated with barbering.” The slogan “Where the Buzz is Real” didn’t
help; nor did the reference to “special guest barbers” in the grand opening
advertisement.

Osteria Segreto relied on the (bad) decision in Express Oil
Change, L.L.C. v. Mississippi Bd. of Licensure for Pro. Eng’rs & Surveyors,
916 F.3d 483 (5th Cir. 2019), in which the court ruled that automotive service
centers operating under the name “Tire Engineers” couldn’t constitutionally be
held liable under state law restricting the use of the term “engineer.” The
Fifth Circuit found that, because “engineer” “can mean many things in different
contexts,” it was not inherently misleading, despite the state’s survey finding
a very high percentage of consumers were deceived.

Somewhat in contradiction to the idea of arbitrary
trademarks, the court here ruled that “nothing suggests that ‘barber’ or ‘barber
shop’ can mean many things in different contexts,” so the terms could only mean
licensed professionals. (And Apple can only mean fruit?) State law defines “barber
shop” “expressly—and narrowly”—as “an establishment or place of business
properly licensed as required by the act where one or more persons properly
licensed are engaged in the practice of barbering.” And the contextual factors
here reinforced that, including the logo, so the name and logo “inevitably will
be misleading” as to the services available to customers:

The Court would not hesitate to
hold that calling a bar “The Hospital Blackstone,” “The Doctor’s Office
Blackstone,” “The Law Office Blackstone,” or “The Department of Motor Vehicles
Blackstone” would be inherently misleading.

The remaining context didn’t help, as noted above. “There is
an inevitably misleading inference that ‘The Barber Shop Blackstone’ provides
barbering services although it may also provide alcoholic beverages—even if
there is no evidence that anyone was actually deceived about the services or
goods provided. The parties do not dispute that there are barber shops that
also have liquor licenses.”

Although technically Central Hudson analysis can
simply end if the regulated commercial speech is inherently misleading, the
court considered the other prongs. The only serious challenge was to the
regulation’s tailoring. Central Hudson requires a restriction to “directly
advance” a “substantial” governmental interest. “Restricting unlicensed
entities from using ‘barber shop’ and a ‘barber pole’ in their advertising
plainly provides effective support for and directly advances the government’s
purposes of protecting both ‘the interest of public health, public safety, and
the general welfare’ and ‘the skilled trade of barbering and the operation of
barber shops [that are] affected with a public interest.’” Although the
existence of less restrictive alternatives is relevant, intermediate scrutiny
doesn’t require a perfect fit, and the fit here was reasonable.

from Blogger https://tushnet.blogspot.com/2026/04/state-barber-board-wins-battle-against.html