A jury in Harris County will soon decide whether a whiskey company has infringed the trademarks of the Landry’s restaurant and hospitality empire in a bid to unlawfully boost recognition for the fledging company, or if the entrepreneur who named the brand after his own last name did nothing wrong.
Opening statements were made Wednesday afternoon in the case that pits billionaire Tilman Fertitta’s Landry’s against Landry Distilling, a company that launched in Austin in November 2021 and sells bourbon and rye whiskey featuring quarter horses on the bottle. Lowell Zachary Landry and his Landry Distilling drew a lawsuit from Landry’s in March 2023.
Angela M. Peterson of Ahmad Zavitsanos & Mensing, who represents Landry’s, told the jury Wednesday afternoon to consider whether the similarity in the names of the companies is “by design,” explaining that Landry Distilling has a small marketing budget, and didn’t hire a celebrity to promote the brand, but could have picked its name as a way to both confuse consumers into associating it with the Landry’s brand and stand out on crowded liquor store shelves.
“At the end of the day, they sell whiskey and we sell whiskey,” she said, noting the spirit is sold in Landry’s restaurants and bars. “That’s why there’s a likelihood of confusion.”
Peterson told jurors that in August 2021, once Landry’s got wind that Landry Distilling had filed trademark applications with the U.S. Patent and Trademark Office in July 2021 to register the word marks “Landry Distillery,” “Landry Oaks,” and “Landry Stakes” for use in marketing its whiskey products, the company sent a cease and desist letter. Landry Oaks is the name of the whiskey company’s rye, and Landry Stakes is the name of the company’s bourbon whiskey.
“The bourbon wasn’t even in the bottles,” she said of the timing of the letter.
But Landry Distilling opted not to change course after getting the letter, Peterson said.
“They chose to keep [the name] … after we told them people may be confused,” she said. “Ask yourself if that was by design.”
According to court documents, the USPTO, in January 2022, refused the applications citing a “likelihood of confusion” with the Landry’s marks.
Joseph R. Knight of Ewell Brown Blanke & Knight told jurors during his opening statement that the colorful logo of Landry’s stands in stark contrast to the black and white logo and labeling used by his client, Landry Distilling.
And had Landry Distilling wanted to confuse consumers into thinking it was associated with Landry’s, the company would have perhaps launched its product at a seafood restaurant, rather than the “western hat store” in Austin where the whiskey was unveiled, he said.
He said jurors should not expect to hear from a single customer who purchased a bottle of Landry whiskey, or any store clerks who sold the product, who will say they were confused about whether the product was affiliated with Landry’s.
“They’re not even remotely similar,” he said of the brands. “And yet, these guys are still coming after us.”
“He doesn’t compete for their business,” Knight said of his client, Lowell Zachary Landry. “He doesn’t own 600 restaurants … or a casino.”
And the alcohol laws in Texas forbid Landry’s from making and selling its own liquor, Knight said, telling jurors his client’s business “operates in a land they, legally, cannot get into.”
“And yet, here they come.”
Harris County District Judge Beau A. Miller is presiding over the case.
Landry’s is also represented by John Zavitsanos and Harrison Scheer of Ahmad Zavitsanos & Mensing and Jason P. Blair of Smith, Gambrell & Russell.
Landry Distilling is also represented by Steven J. Knight of Chamberlain, Hrdlicka, White, Williams & Aughtry.
The case number is 2023-20455.