Write a memorandum predicting the strength of the claim being brought against them. As you know, litigating

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Question:

Write a memorandum predicting the strength of the claim being brought against them. As you know, litigating in federal court can be expensive, especially for a small family-run restaurant. I want you to research whether there is a likelihood of confusion between Gringo's, the plaintiff, and Habanera and the Gringo, our clients' restaurant. The answer to that question will inform whether we decide to recommend going to trial, settling, or entering into alternative dispute resolution.

Here's the background. It is a federal trademark dispute between Habanera and the Gringo, and the Houston Tex-Mex chain, Gringo's Mexican Kitchen. Be sure to use these facts to construct your argument.

Gringo's Mexican Kitchen, the plaintiff, has 10 locations in the suburbs of Houston. Habanera and the Gringo only opened in 2015, near Hobby Airport, just off the Gulf Freeway. The Gringo's chain claims it has operated since 1993, and that the use by our clients of the name Habanera and the Gringo causes consumer confusion. Our clients, Vanessa Lomeli and her fianc Ben Downing opened Habanera and the Gringo to showcase their Mexican family recipes and cocktail innovations. They are really attached to the name and want to keep it. They opened in a disheveled former La Tapatia and are eager to make a go of their restaurantin fact they operated as La Tapatia for a few months, before honing their own concept.

During this time, they were careful to choose a name that they hoped would avoid any litigation. There are a number of restaurants in Houston with a variant on the name "habanero". For example, Habaneros Mexican Grill, Habaneros Tex-Mex, Habaneros Tacos, etc. So Lomeli and Downing chose a name that they thought was idiosyncratic to set them apart. The name comes from the inside joke that Lomeli is the "Habenera" of the two, because as she told us at our client meeting, she is "little and feisty". Downing on the other hand was the Gringo. They wanted both these nicknames in the name of their restaurant, so their sign includes a big habanero caricature with steam, with a line indicating, "the Gringo", almost as if Downing had added it as a graffito or edit.

Everything was going great with the restaurant until Allison Cook wrote a very positive review of the restaurant for the Houston Chronicle. The Gringo's chain then sent a cease-and-desist letter. Lomeli remembers trashing the letter and thinking, "this is B.S." The Gringo's name is not federally registered, though it has been used in commerce for the last 20 years and has according to them, achieved common law trademark status.

As you may know, this kind of trademark dispute is very common in the restaurant industry. Even the Gringo's logo borrows heavily from the "Welcome to Fabulous Las Vegas" sign. Gringo's even has items on their menu like "Hugo's Famous Chalupas" which may be seen to be stepping on the toes of Hugo Ortega's iconic restaurant Westheimer in Montrose. Our clients Lomeli and Downing think that the request they change their name is ridiculous and unfair. I think we should base an argument around the idea that any customer visiting each of these different kinds of establishment would see that they appeal to different tastes. The Gringo's chain aims to give customers large portions of generic Tex-Mex at really low prices. On the other hand, Habanera and the Gringo uses New Mexican flavors, has a number of dishes made sous vide (French for under vacuum) and craft cocktails. Our clients' restaurant is much more ambitious and appeals to a smaller niche audience.

As a consequence, I want you to read the Gringo's complaint and write a memorandum in support of a motion to dismiss. I want you to take this factual background and argue that the Gringo's chain has not presented a claim which is likely to win because there cannot be any consumer confusion in this case given the different ambitions of these two different entities; one a large chain, the other an ambitious mom and pop establishment.

I'd like you to take the lead here decide for yourself what arguments to usethough I am still available to answer questions.

Please find attached Cook's review, the complaint, and answer.

Memo 2 Instructions:

The assignment will assess your ability to analyze statutes and precedent to resolve a legal issue. It will assess your ability to analyze a legal problem and construct a clear, concise memorandum that effectively uses facts and law to support your legal prediction. Your goal should be to communicate your analysis so that a busy practicing attorney can understand your analysis and the law. While this is a solo assignment, and you may not collaborate on any aspect of this assignment.

You should include a memo caption, the Question Presented, Brief Answer, Facts, Discussion, and a short Conclusion section.