Mission Dispatch

Legal advocates such as Roy S. Gordet are cheering over a court victory for the local “mom-and-pop” establishments that get trampled as corporate giants create empires.

Even though a U.S. District Court decides in favor of
Los Jarritos Restaurant, Novamex lawyers plan to appeal.
Photo: Jennifer Pickens

On May 2, Judge Jeffery S. White of the U.S. District Court for the Northern District of California decided in favor of Los Jarritos Restaurant located on the corner of South Van Ness and 20th streets.

In his decision Judge White sided with restaurant owner Dolores Padilla Reyes noting that there was no trademark infringement in the use of the name “Los Jarritos” as a restaurant to be confused with a major beverage brand called “Jarritos.”

Reyes was summoned to court to discontinue using the name Los Jarritos for her neighborhood establishment of 18 years. The beverage maker sought to claim its dominion over use of the name.

“They sent me a very intimidating letter,” said Reyes, who fortunately was able to find legal help with the established practice of Gordet. He specializes in intellectual property and trademark law.

“What they had sent to Dolores was basically a ‘cease and desist letter,’” he said. The letter was sent by Novamex of El Paso Texas. Novamex is a conglomerate that owns distribution over Jarritos along with a host of brand-name food and beverage products in Mexico and the United States.

Gordet explained that Novamex was just “basically flexing its need to make its mark stronger,” he said. A common corporate practice, he noted that it really wasn’t necessary “going after all the little people.”

Yet this apparently is what the conglomerate is doing. “Dolores received the letter over two years ago,” he said.

Gordet as a long-standing SF attorney stepped up to face the plaintiff’s suit. The complex litigation was posed by a powerful legal team comprised of several individual lawyers and major law firms under the leadership council of Neil A. Smith.

Smith practices law at the San Francisco office of Sheppard, Mullin, Richter & Hampton.

Back in Dec. of 2005, Lyanne Melendez of local KGO-ABC Channel 7 News reported that Smith made this comparison. “If a United States restaurant in Mexico was calling itself Coca-Cola, of course the Coca-Cola Company would try to stop that use,” he said.

Gordet views this as disproportionate. Gordet with years of experience in high-powered legal circles before establishing his own practice was undaunted by the formidable legal team.
“There clearly was no confusion to consumers in use of the name,” he said. Gordet and others, such as Seattle attorney Michael Atkins at the firm of Graham & Dunn speculate that was the basis for the decision.

As documented in court, there must be three basic elements to constitute a “likelihood of Confusion,”(Such as: distinctiveness, non-functionality, and a similarity that leads to a likelihood of confusion).

Atkins reviewed the case and features it on his web site Seattle Trademark Lawyer. Atkins like Gordet specializes in trademark law. Atkins surmises that Judge White found none of those three basic elements to cause an infringement.

“One is a beverage called Jarritos and the other is a restaurant named Los Jarritos. Clearly to the judge there was no confusion of similarity,” said Atkins.

In the extensive 13-page court report - (paragraph 3-f), it was noted “the fact that there is no evidence of actual confusion weighs heavily in their (the restaurant’s) favor.”

In 1988 when Reyes opened her restaurant she went through all the required steps with the City and County of San Francisco. There was no indication of someone else using the name she had chosen.

“I can understand the beverage company calling me to court regarding use of the name if I had just opened. But after 18 years in business, she exclaimed, and not a word about it? The horse has already left the barn,” she said.

Ironically, Reyes had included the Jarritos beverage line in the array of drinks offered to patrons. “After all this in court, not now,” she said.

Jarritos has been a nationally recognized beverage brand name in Mexico since Don Francisco “El Güero” Hill founded it in 1950.

30 years later the Fernandez and Hill Families joined forces to form Novamex a marketer of Mexican non-alcoholic beverages and grocery products in the U.S. market and in the world since 1987.

Novamex has its goal to be “the number one marketer.” Yet according to the company web page novamex.com, the purpose is also to “create a community of entrepreneurs with a sense of social responsibility.”

Atkins also speculated that the “Doctrine of Laches” might have been considered.

This means that if an unreasonable lapse of time has passed or there is neglect to assert a right or claim, then the Doctrine of Laches will act as a bar in court. Atkins wonders why it took the conglomerate so long to act.

According to Smith, Novamex had no idea the name Los Jarritos was being used by others until recently. Despite the decision by Judge White, he sees Jarritos and Los Jarritos as confusing to customers

Smith talked to the Mission Dispatch briefly, saying that Gordet is eager to “plant the story about the decision.” He mentioned that the doctrine of Laches, wasn’t part of the case and that “from our standpoint we intend to appeal,” said Smith.

There are dozens of restaurants called Los Jarritos throughout North America. As “Chow!”-Eugene Oregon’s weekly restaurant guide reported in Jan. 2006.

Like Reyes, Salvadorian restaurant owners Edith and Jorge Rivera got a similar threat to the tune of a $100,000 lawsuit. The Oregon residents decided it made better sense to pay $2,500 to simply change their restaurant name to El Jarro Azul rather than fight in court. Chow quoted Edith Rivera as saying, “they go after the little people.”

Praising the decision by Judge White, “it did not go to trial,” said Gordet. He sees the judge’s ruling as a victory for all the little people; the mom-and-pop places.

Reyes was very happy about the legal victory. She and her family have been in the restaurant business for generations.

The threat of a lawsuit posed a real hardship. Reyes said it would have put the family restaurant out of business.

“I still don’t believe it,” Reyes said. “Roy was beautiful, he fought for us with his heart,” she said.

Reyes in an apron was busy serving food from the kitchen. She took a few moments to talk to the Mission Dispatch about her life. “I grew up in the restaurant business and raised my children in it,” she said.

Live music greeted the lunchtime crowd as a trio of mariachi players serenaded patrons. Tables and booths were full surrounded by familiar and festive Mexican motifs that included, of course “little jars” adorning the walls.

“Little jars” are what my mother used to have in her kitchen, so the name Los Jarritos was natural for me,” said Reyes.

Born on 20th Street and Folsom, and raised in San Francisco all her life, the restaurant is home and family to Reyes. “My parents were originally from the province of Jalisco in Mexico. They had a restaurant in San Francisco called New Central for many years.”

“Little jars” are characteristic of Jalisco, Reyes noted.

Dr. Jose Cuellar an anthropologist at San Francisco State University was asked to testify to the judge. “Roy needed an expert to show that the universal role of jarritos (or little jars) as having significance to all of Mexican culture,” said Cuellar.

He teaches La Raza studies at SF State. “These little jars in various styles and forms are used for both decor and for serving all kind of things such as tequila,” said Cuellar.

“They have been used for centuries throughout all of Mexico,” he added. Smith responded to that by saying, “just because something is a well-known cultural icon does not mean it cannot be used as a patented trademark,” said Smith.

Smith made the point about the cultural icons of the stagecoach, a symbol of the old west and a baseball park. He noted the familiar bank and a brand of hot dogs. The stagecoach while a prominent figure in images of the old west is a trademark of Wells Fargo Bank. And, Ballpark is a name of hotdogs, etc. said Smith.

Regardless of Smith’s view, Reyes sees the lawsuit as unreasonable on the part of Novemex. “It makes no sense, going after small mom-and-pop places like me,” said Reyes. Reflecting upon her life she said, “Everything I learned about the restaurant business, the day-to-day operations, and all the home-made recipes; all of it, I learned from my parents, she said.

Reyes makes everything fresh including the corn tortillas by hand every day.

“With the earnings from this business I sent my children to college,” she said. “One went to UC Berkeley the other to Columbia University in New York City,” Reyes added. The threat of litigation has been a worry to her.

“If someone had said to me years back that in the future a mom-and-pop type would be pushed out of business, I would have laughed. But not now,” said Reyes

Smith reiterated about the appeal. “We don’t see the judges’ decision as final,” said Smith. Meanwhile, Gordet said that when he gets word that an appeal has been filed he will be ready.

For more details about Los Jarritos Restaurant visit: www.losjarritos.com.

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