"Your El-Jarrito restaurant will no doubt be associated with the famous Jarritos mark, as they are identical in meaning," said lawyers for the soft drink company in a letter dated Feb. 16.
Rather than go to court, El-Jarrito owners Victor and Flora Cibrian have decided to go along with the name change and hold a competition soliciting suggestions.
"(Our lawyer) thinks we would have a good chance at fighting it, but we didn't want to put the time and money into it," said restaurant Manager Joseph Cox.
Fighting the federal lawsuit could take as long as a year and would entail traveling to San Jose, said David Thelen, the Cibrians' lawyer.
"My clients' position is that this doesn't impair (the Jarritos) trademark to any substantial degree, but the bottom line is that ... they're not particularly wed to it," Thelen said. "It's not an agreement that there is an infringement."
When the Cibrians took over El-Jarrito almost 11 years ago, the restaurant had already been operating under that moniker for more than a year, Victor Cibrian said.
Jarritos soft drinks were made in Mexico City in the 1950s, and imported to the United States in the '80s. The drinks are available in many grocery stores and restaurants locally.
An 18-page proposed lawsuit attached to the letter goes on to state that "El-Jarrito has used Jarrito's marks in commerce with the knowledge and intent that such use cause (sic) confusion, mistake, and deception to the purchasing public."
Although the name and product are not identical, similarities are enough to cause confusion, said Charles W. Hanor, the San Antonio-based attorney representing Jarritos' parent company, Novamex.
"If someone opened a restaurant called El Pepsi, guess what would happen. The 'el' has no significance," Hanor said. "Effectively, it's the same."
However, patrons polled randomly at the restaurant Wednesday afternoon disagreed. They had either never associated El-Jarrito Restaurant with the soft drink, or had not heard of the drink.
"I've never made that connection," said Winton resident Lon Baugh, 48.
The El-Jarrito signage is green and red, while the Jarritos logo is green and orange, and is accompanied by a picture of three round jugs.
The word "jarritos" itself is Spanish for "little ceramic jug."
It is not uncommon for large companies to "take on" small, local businesses to protect their trademarks, Thelen said.
According to the U.S. Patent and Trademark Office Web site, the "Jarritos" trademark was first filed Aug. 12, 1980.
Cox said that while the restaurant will comply, name-changing would not be without difficulties.
"Even if we aren't particularly attached to the name, it's been associated with this business for the past 11 years," Cox said. "Changing it is somewhat of a hardship for us. Our customers associate it with the family (that owns it) and the people that work here."
Owner Victor Cibrian said riding on the coattails of someone else's reputation was never his intention.
"We don't want to use someone else's name to build our own," Cibrian said. "We're not that type of people. We like to have our own reputation and our own name."
Despite everything, there are "no hard feelings," Cox said.
"We're always interested in giving our customers what they want," he said, adding that if patrons asked for Jarritos soft drinks, the restaurant will continue to stock them.
"It's business," Cibrian added. "We're not going to be waiting around the corner with a baseball bat."
Instead, the restaurant is holding a competition to solicit name suggestions.
Entries should include the submitter's name, address, phone number and suggestion. Deadline is Friday, April 15, and the new name will be announced at the restaurant's Cinco de Mayo celebration.
"We're going to take something that could be a negative aspect and change it into something positive," Cox said.
No deadline for the name change was given in the letter from Jarritos.
"We don't want to disrupt their business," Hanor said. "We don't mind giving them a reasonable time... we just don't want them using our mark."
Signs, business cards, menus and the El-Jarrito.com Web site will have to be changed, Cibrian said. He estimated the building's signage at $3,000, but said all the changes could run between $10,000 and $15,000.
In spite of everything, Cibrian said he is unfazed.
"I believe it's unfair, but it's good for me," he said, adding that change forces him to improve his business. "I am here for the rest of my life. Watch me."
Business reporter Patricia Jiayi Ho can be reached at 385-2472 or pho@mercedsun-star.com.
El-Jarrito Restaurante & Cantina
• 2811 Shaffer Road, Atwater
• 358-7623
CONTEST INFORMATION
• Deadline for submissions is April 15.
• Submit your name, address and telephone number along with your suggestion.
• First-place, second and third place winners will receive a $300, $150 and $100 gift card respectively.
