An unusual procedural approach during the trial of Gruma Corp. v. Mexican Restaurants Inc. recently led to a defense judgment in a trademark infringement suit for Barry Flynn and his client Mexican Restaurants Inc. (MRI).

Flynn, a partner in Gordon & Rees in Houston, says the trial judge granted his pretrial motion requesting a “rare” advisory jury, which he had never used before. The advisory jury heard all the evidence and issued a nonbinding verdict saying consumers would not confuse MRI’s trademark with plaintiff Gruma’s — a decision Flynn believes U.S. District Judge Michael Schneider took into account in his Sept. 13 judgment.

Schneider’s Sept. 13 finding of facts and conclusions of law set out the following: Gruma, also known as Mission Foods, produces “Mission” brand food products, which include tortillas and tortilla chips. The company’s trademark, which it registered prior to December 1995, appears “on the labels and packaging for Mission brand products, generally featur[ing] bright colors and a design element depicting a bell tower.”

MRI operates “fast-casual restaurants” in the Houston area under the name Mission Burrito. MRI’s black-and-white logo was trademarked in Texas in 1997 by Mission Burrito’s previous owner, who sold the restaurants to MRI, wrote Schneider of the Eastern District of Texas in Sherman.

On Jan. 11, 2010, Gruma filed an amended complaint alleging that MRI infringed on and diluted its trademark and engaged in unfair competition by misrepresentation. Gruma sought an injunction barring MRI from using the name Mission Burrito; it did not seek monetary relief, so there was no right to a jury trial.

John Cone of Dallas’ Hitchcock Evert, who represents Gruma, did not return a telephone call seeking comment.

In its answer filed on Jan. 25, 2010, MRI denied the plaintiff’s allegations. MRI also asserted that “its marks are sufficiently distinct from Plaintiff’s marks so as to avoid any likelihood of confusion as to source or origin.”

The case was transferred to a nonjury docket. Flynn then filed a motion asking the court to impanel an advisory jury pursuant to Federal Rule of Civil Procedure 39(c), which the court granted. Flynn says he stressed to the advisory jury that “the plaintiff sells components; we sell end products.” On Jan. 26, after deliberating for less than a day, the advisory jury sided with MRI.

Although the advisory jury’s verdict was nonbinding, Flynn believes its conclusions helped stress to Schneider his client’s argument that no confusion existed among consumers about the trademarks. Flynn says the advisory jury was, in essence, a panel of consumers.

In a footnote in his findings of fact and conclusions of law, Schneider referenced the advisory jury’s defense verdict. “Considering all of the factors and relevant circumstances, there is no likelihood of confusion between the parties’ marks,” Schneider concluded, noting, among other things, that MRI’s and Gruma’s products were not similar. He added that neither party showed through evidence that actual trademark confusion existed among consumers.

Flynn says MRI now can pursue franchise plans unencumbered by an injunction threat. “This was a big win.”

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