Michael Atkins - Seattle Trademark Lawyer

On Friday, I talked with one of the lawyers representing the owners of Peso’s in their claims against the owners of the Matador in Seattle’s restaurant wars trade dress trial. (Most recent STL post on the case here.)

Here’s an update:

The case is about halfway through the expected six-week trial. Peso’s should be done with its case-in-chief soon — on approximately Oct. 16.
Trial is not scheduled this week because King County Superior Court Judge Catherine Shaffer will be attending a judicial conference.
The parties have agreed to a mutual dismissal with prejudice of the parties’ dilution claims and counterclaims. This resulted in part from the trial proceeding without a jury, so that any remedies allowed under Washington’s dilution statute will be based on the court’s view of fairness and equity. The remedies also appeared no different to the parties than those available under their other claims and counterclaims.
The parties have agreed to a mutual dismissal with prejudice of all claims and counterclaims involving four non-owners of Matador’s Washington restaurants, including an artist who designed the ironwork in both Peso’s and the Matador. In addition, Peso’s and one of the metal works artists have agreed to resolve a breach of contract claim in which the artist will deliver to Peso’s some unfinished metal work.
The case now consists of five claims: (1) common law trade dress; (2) common law unfair competition; (3) unjust enrichment; (4) violation of Washington’s Consumer Protection/Unfair Business Practices Act; and (5) violation of Washington’s Uniform Trade Secrets Act. The Matador also has a number of affirmative defenses and counterclaims still pending.
Peso’s trade dress claim is that the trade dress of the first Matador restaurant in Ballard so resembled the trade dress of Peso’s that actual consumer confusion, mistake, or deception occurred with respect to the source or origin of such trade dress, and that the later three Washington Matador restaurants also resembled the first Matador so as to cause likelihood of confusion, mistake or deception as to their source or ownership with respect to Peso’s. The trade dress claim concerns the overall impression of the ordinary consumer resulting from alleged similarities in the restaurants’ ornamental ironwork, wooden tables, in-laid tables, curved booths, curves in bars, slats in bars, wall treatments, trim and ceiling colors, suspended acoustic panels, lighting, use of votive candles, table-top happy-hour menus, entree and dinner menus, and other decorative elements.
The parties have briefed and the court will decide what standards apply to trade dress claims under the common law of Washington.
The court has stated that the U.S. Supreme Court case of Two Pesos v. Taco Cabana does not control because it was based on the Lanham Act and not Washington State common law, though the court found that policies underlying the case are helpful — particularly with respect to the Washington trademark and trade dress common law policy of protecting consumers.
The Matador has announced its intent to bring motions to dismiss Peso’s remaining claims. The parties are expected to argue such motions on or about Oct. 16, at the close of Peso’s case, and before the Matador presents its case.

Note: because I just wanted to provide a factual summary of what’s been happening in trial — and not to give the parties the opportunity to fight their case out in this blog — I did not seek comment from the Matador’s side. Hopefully, this summary accurately characterizes the first three weeks of trial and what lies ahead in the next three weeks. Though I’ve visited both restaurants, I’m not choosing sides on this one.

In related news, the Ballard News Tribune recently wrote about the case and quoted me discussing basic principles of trade dress law.