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Wednesday, August 28, 2019

Legal Expert Says San Antonio Artist Cruz Ortiz's Claims Against Food Pop-Up ¡Bucho! May Have Shaky Standing

Posted By on Wed, Aug 28, 2019 at 12:58 PM

click to enlarge REGINA MORALES
  • Regina Morales
According to a law professor at St. Mary's University, the statute cited by Cruz Ortiz's legal team in the cease and desist letter sent to the Durden Food Group last week may not be applicable to his case.

In the letter, Ortiz lawyer John Bustamante alleges that the similarity of the ¡Bucho! logo to Ortiz's art style may cause "confusion or misunderstanding as to the sponsorship or approval" and "confusion or misunderstanding as to affiliation or association" under Texas Business and Commerce Code § 17.46(b)(2) and 17.46(b)(3).

However, St. Mary's University School of Law professor Genevieve Hebert-Fajardo says this statute wouldn't necessarily apply to Ortiz's claim.

"The Texas Deceptive Trade Practices Act generally regulates transactions between buyers and sellers," Hebert-Fajardo says. "One of the requirements is that the plaintiff must be a consumer, which means he or she is seeking [or] acquiring, by purchase or lease, goods or services."

She continues: "So, when the attorney cites section 17.46, he is neglecting the requirement that he must identify how his client is a consumer with respect to the business he is complaining about."

That doesn't necessarily mean that the ¡Bucho! team is out of the woods, though.

St. Mary's law professor Robert Hu says the Durden Food Group may still be subject to civil liability under this statute if their use of the ¡Bucho! logo "may cause confusion or misunderstanding as to the source, sponsorship or approval of goods or services."

Still, Hu adds it's worth noting that the cease and desist doesn't focus on copyright or trademark law.

"I am curious that Mr. Ortiz’ lawyer is not explicitly alleging trademark infringement based on the restaurant’s use of the logo," he says.

That may be because typefaces aren't protected under U.S. law. Instead, Ortiz's camp may be forced to rely on the assertion that the ¡Bucho! logo design infringes on his signature art style, according to experts.

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