BRATTLEBORO — The owner of a 10-week-old taco business said he'll change its name after a California-based restaurant's lawyer claimed it infringes on theirs.
Tito Garza, 29, of Brattleboro, received a cease-and-desist notice last week from a Los Angeles trademark lawyer demanding he stop using the name, Tito's Tacos of Vermont.
The lawyer, Greg Victoroff of Greg Victoroff & Associates, said "Tito's Tacos is the exclusive registered trademark of Tito's Tacos Mexican restaurant in Culver City, California."
Garza said he doesn't have the resources to tangle with a law firm in California, so he'll change the name of his venture, though he hasn't decided what yet.
"I researched multiple taco restaurants in the nation, and I thought I was in the clear by naming it Tito's Tacos of Vermont," Garza said.
Victoroff said his client, Tito's Tacos, is a "small, family-owned business selling tacos, burritos and Mexican-style food in the same, single location in Culver City, California, since 1962."
Meanwhile, Victoroff also has requested that the Brattleboro Reformer remove from its website a picture of Garza selling tacos at the Brattleboro BaconFest because his Tito's Tacos banner hangs in the background. The photo, taken on Saturday, Sept. 17, also was the main image on the front page of the Monday, Sept. 19, Reformer.
"The news story and photograph appearing at [the Reformer's website] ... is infringing the Tito's Tacos trademark by displaying and distributing content referring to a food vendor named Tito Garza using the Tito's Tacos trademark in Brattleboro, Vermont, and elsewhere in violation of state and federal trademark law," Victoroff wrote in an email to the Reformer.
The picture accompanied a Reformer story about the Brattleboro BaconFest, a gathering of food and beverage vendors and entertainers in a celebration of bacon at the Guilford Fairgrounds. The story named Garza's business as being among the vendors at BaconFest.
Victoroff requested that the Reformer "immediately remove the aforementioned infringing material from its website, immediately notify the source of the infringing content of this notice, inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to The Brattleboro Reformer News website in the future."
The Reformer has declined to take down the picture on First Amendment grounds.
A "fair use"
In a response, Fredric D. Rutberg, the president of New England Newspapers Inc., which owns the Reformer, refused to remove the picture from the Reformer's website.
"The photo in question depicts a local food vendor whose sign identifies his business as Tito's Tacos," wrote Rutberg. "While this use of the name Tito's Tacos may indeed infringe on your client's registered trademark, it is our opinion that the photo in question does not constitute an infringement of your client's trademark. At best it is a 'fair use' of trademarked material."
"Tito's greatly respects your newspaper's First Amendment rights of free speech," Victoroff responded in an email to Rutberg, "but the use of its trademarked name in the [photo and news story] seriously dilutes and erodes its trademark. ... Every day the Tito's Tacos family must defend and protect its trademark rights from death by 1,000 cuts or risk losing its name and trademark."
Building a business
Garza, who learned to make tacos from his grandmother while growing up in Houston, started his business "10 weeks ago on the side of the road at the Creamery Bridge by Living Memorial Park."
"On the first day, I brought 30 tacos and only sold two. The second day, I sold out," he said.
Since then, he's become a familiar face around town, hawking tacos out of a cooler, greeting customers with a smile, and pursuing a dream of owning his own taco truck.
Garza now sets up shop to serve breakfast from 7:30 to 10 a.m. on Wednesdays, Thursdays and Fridays at Avenue Grocery on Western Avenue in Brattleboro. On Saturdays and Sundays from 11 a.m. to 4 p.m., he serves lunch from his taco tent at Grafton Village Cheese's Specialty Cheese & Wine Shop in Brattleboro.
Garza has a site permit from the town and the necessary permits from the Vermont Department of Health.
"I've done my research," said Garza. "I want to save up for a food truck, but I need to see if people really want my product. The community support has been unreal and has helped me to validate the concept."
Business has been good enough that Garza has purchased a new griddle and chafing pans. He has his fingers crossed that he'll earn and save enough to buy his food truck by next summer.
"Our true goal is to move toward serving lunch tacos," he said. "We are spending the money we make on reinvesting in the company, not fighting lawyers."
Bob Audette can be contacted at 802-254-2311, ext. 160.