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September 2011

Houston Partner Barry Flynn Named "Litigator of the Week" by Texas Lawyer for Defense Judgment in Trademark Suit

Houston partner Barry Flynn recently obtained a defense judgment for his client Mexican Restaurants (MRI) in a trademark infringement suit filed by Gruma Corporation, earning him "Litigator of the Week" recognition by Texas Lawyer.

Texas Lawyer emphasized that Flynn made a strategically successful pretrial motion requesting the use of an advisory jury, which the trial judge granted. Neither the Judge nor Flynn had ever used an advisory jury before. The advisory jury heard all of the evidence in the case and issued a nonbinding verdict stating that consumers would not confuse MRI's trademark with Gruma's. 

Gruma Corp., which is also known as Mission Foods, produces "Mission" brand food products including tortillas and tortilla chips. The company's logo featured bright colors and a design element depicting a bell tower. MRI operates "fast-casual" restaurants in the Houston area under the name Mission Burrito and has a black and white logo that was somewhat similar to Gruma's in that it depicted a Spanish cathedral and a bell tower. Gruma sought an injunction barring MRI from using the name Mission Burrito, complaining that MRI infringed on and diluted its trademark and engaged in unfair competition by misrepresentation.

U.S. District Court Judge Michael Schneider referenced the advisory jury's defense verdict in his findings of fact and conclusions of law, stating that "Considering all of the factors and relevant circumstances, there is no likelihood of confusion between the parties' marks." Flynn was quoted as stating MRI now can pursue franchise plans unencumbered by an injunction threat. "This was a big win," explained Flynn.

Click here for the full article.

Barry G. Flynn



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