There’s nothing wrong with Lowell Zachary Landry using his surname to brand his whiskey, a Harris County jury determined Monday afternoon, rejecting arguments Landry’s — the restaurant and hospitality empire owned by Houston billionaire Tilman Fertitta — had made during a short trademark trial.
Opening statements were delivered to jurors Wednesday afternoon in the lawsuit Landry’s filed against Landry and his company, Landry Distilling, in March 2023. Landry was one of just four witnesses called to testify during the trial that ended with a verdict in his favor around 1 p.m. Monday.
Joseph R. Knight of Ewell Brown Blanke & Knight, who represented Landry, told The Texas Lawbook on Monday afternoon that he was friends with Landry before taking this case and that it had been “personal for both of us.”
“It’s a really special win, and I had a long career at Baker Botts where I mainly represented corporations, and I’m thrilled to try sophisticated, high-stakes cases, but there’s nothing quite as satisfying as this,” he said.
Both Knight and Landry were heading back to their homes in Austin Monday afternoon, but they had time for “one celebratory cocktail, tequila, not bourbon” before beginning the trip back, Knight said.
Harrison Scheer of Ahmad Zavitsanos & Mensing, who represented Landry’s and handled a portion of closing arguments in the trial, issued a statement to The Lawbook following the jury’s verdict Monday.
“The jury has spoken,” he wrote. “We are going to evaluate our options. But we had no choice but to try to enforce our mark because we did not want it diluted.”
Knight told jurors during closing arguments Friday that the plaintiffs in the case had wrongly and repeatedly accused his client of telling “half-truths,” and had “resort[ed] to petty name calling” and “vindictive attacks.”
“What you witnessed here in the courtroom for the last two days is what happens when a plaintiff, particularly a big, corporate plaintiff, doesn’t have it on the law and the facts,” he said. “They get nasty.”
“They do everything they can to distract you from what Judge [Beau] Miller is asking you to do. I’m sure you’ve noticed there’s a bit of a contrast in style,” Knight said of the approach used by the plaintiff’s lawyers. “I’ve never been one to, sort of, respond in kind to that, even though I have never seen, in 35 years of doing this, a witness treated more disrespectfully than what they did to [Landry on Thursday].”
John Zavitsanos of Ahmad Zavitsanos & Mensing, who represents Landry’s, told the jury during closing arguments that his client had done “everything right,” going to the U.S. Patent and Trademark Office and getting the Landry’s mark registered.
Jurors heard evidence at trial that while Landry had applied for a trademark for his whiskey brand, the application was denied based on a likelihood of confusion. Jurors also heard about discussions prior to any litigation commencing between Landry’s and Landry, and that had he agreed to use his full name rather than only his surname, the entire lawsuit could have been avoided.
Zavitsanos also told jurors that despite his instinct, which would have been to seek damages from Landry at trial, Landry’s wasn’t seeking any money from Landry and simply wanted to protect its mark.
“We went to the Patent and Trademark Office, we sent a cease and desist … and despite that he continued forward,” Zavitsanos said.
He warned the jury that a verdict against Landry’s would open the “floodgates” to “Johnny-come-latelys” who will also unlawfully try to dilute the trademark of his client. If the jury sided with Landry over Landry’s, Zavitsanos said, the company would “lose everything.”
“Please do what the Patent and Trademark office did 35 years ago, please, honor our trademark, respect our trademark,” he said. “We are not trying to shut him down. I hope he and his family do very well. Just, don’t use our name, please.”
Zavitsanos also handled the direct examination of Landry.
Throughout questioning, Zavitsanos asked Landry whether he was misleading customers by holding himself out as a Texas whiskey distiller despite the fact that the whiskey was distilled in Mississippi by Crittenden Distillery. The defense argued there was no intent to mislead, as the Crittenden connection was disclosed on the bottle. Zavitsanos also attacked the quality of the spirits, repeatedly referring to it as “bathtub bourbon,” and he asked Landry — who was accused of piggybacking off the famous Landry’s mark to confuse consumers and increase sales of his whiskey — whether he was familiar with the remora, a fish known for attaching itself to sharks and feasting on scraps.
At one point during questioning, Zavitsanos asked whether Landry was friends with the governor of Louisiana, Jeff Landry. Once Landry confirmed the friendship, Zavitsanos asked whether he had leveraged that relationship once litigation commenced to get the governor to “threaten” Landry’s, which operates a casino in the state.
Lowell Zachary Landry denied that had happened. Zavitsanos again referenced the alleged communications with the governor’s office during closing arguments. Steve Scheinthal, general counsel of Landry’s, also testified about the threat from the governor.
Gov. Landry’s office did not immediately respond to a request for comment late Monday.
Zavitsanos also questioned the motivations and timing behind Landry partnering with a well-known Louisiana moonshiner, Richard Landry, who is Black, after litigation commenced, suggesting it may have been a racially motivated litigation tactic. Lowell Zachary Landry also had to answer questions about whether some of his well-heeled investors, including some who own several Smoothie King locations, may have pushed him into fighting the lawsuit rather than settling as a means of somehow serving as a roadblock or annoyance to Fertitta.
On Monday afternoon following the verdict, Knight addressed the tactics deployed at trial.
“I thought the way John treated my client was inexcusable,” he said. “And as I saw it start to unfold, I fought all of my instincts to object. I think there was a high percentage of that examination I could have made valid objections to, and that likely would have been sustained.”
“But I made the, sort of, snap judgment that what he was doing was so over the top and uncalled for that although I felt bad putting my client through it, I wanted the jury to see that’s really the only bullets they have in their gun,” Knight said.
“If the verdict had come out the other way, that decision may have haunted me for a long time.”
Zavitsanos told The Lawbook on Monday that all of the lines of questioning that drew the ire of Knight had been deemed relevant by Judge Miller.
“If he hasn’t seen anything like this in 35 years, he must not try a lot of cases,” Zavitsanos said. “When you’ve got a guy who consistently lies, you don’t sugar coat it. You go after him.”
Landry’s is also represented by Angela M. Peterson of Ahmad Zavitsanos & Mensing.
The case number is 2023-20455.