WhenBarley & Swine
opened in Kendall, the father and son team of Jorge and Jorge Ramos had a simple idea: Cook classic comfort food and pair it with beer. Hence, the name -- Barley & Swine.
But, as they say, there's no such thing as an original idea, and the family partners soon learned that a restaurant in Austin was called Barley Swine. That restaurant had filed for a trademark December 3, 2012, using the "Barley Swine" name for the first time December 1, 2010.
Upon learning of the Miami restaurant's opening, the Austin restaurant issued a cease-and-desist letter to the Kendall restaurant in March 2013, according to Eater.
Now, Austin's Barley Swine has upped the ante by filing a civil action lawsuit against Barley & Swine and partner Jorge Ramos, according to the Austin American Statesman. The 68-page lawsuit, filed in United States District Court, Western District of Texas, Austin Division, states:
"BGDG Enterprises, LLC. d/b/a Barley Swine [Austin] filed its application for Plaintiff's Mark on December 3, 2012, which is approximately six (6) months prior to Defendant's first use of "Barley & Swine" on June 22, 2013."
The lawsuit also alleges:
"The Defendant's activities are likely to create confusion among the purchasing public, are likely to deceive purchasers concerning the source or sponsorship of such goods and/or services, and will otherwise mislead purchasers as to the origin of the goods and/or services offered and sold by the Defendant, and cause purchasers and others to believe that Defendant's goods and/or services come from, or are sponsored or approved by, or affiliated with, BGDG, thereby causing irreparable harm, injury and damages to BGDG."
A letter addressed to Jorge Ramos in June 2013 by Barley Swine's law firm, Meyertons, Hood, Kivlin, Kowert, & Goetzel, which is listed as an "exhibit" in the filing, demands that the Miami restaurant "remove all references to Barley & Swine (or anything confusing similar to it) from all of your business materials, advertising, website, and social media pages"; "inform your customers that the name of your restaurant will be changing"; and "agree to transfer the domain name barleyandswine.com and any other related domain names you may own to us."
Jorge Ramos told Short Order that he received the paperwork for the lawsuit just an hour and a half before we called.
Ramos said he and his son changed the name of the restaurant as soon as they got word of the conflict, about three or four months ago. "We have already switched our name to B&S Gastropub. The only thing we didn't change was our Facebook page because I didn't want to lose our 1,700 followers and we can't change the name without starting over.
"But if you look on our website, all our menus, and when you walk into our restaurant, all signs and logos say 'B&S Gastropub.' I answer the phone 'B&S Gastropub.'"
Asked why he thought Barley Swine still filed the trademark infringement lawsuit, Ramos confided that he didn't know. "It kind of makes no sense. We had already changed our name."
Ramos also said even though he was using his best efforts to let customers and the media know about the new moniker, sometimes it was difficult. "People already knew us as Barley & Swine on Yelp and on social media. They still call us Barley & Swine, even with the name change. You can't help what someone calls you."
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Although B&S Gastropub's web address is still barleyandswine.com, the logo on the homepage says 'B&S Gastropub' in large letters (with the words "Barley" and "Swine" over the initials). There is also one reference to the former name on the homepage. All other mentions of the restaurant on the website refer to it simply as "B&S Gastropub."
In the end, Ramos is hoping he can just get back to running a family business -- no matter what it's called. "It's just a name. We don't want to compete with [Barley Swine]. They're a great restaurant; they're doing great things. I really don't want to have any problems with anyone. I want to do my own thing and cook good food. "