A popular Austin donkey is kicking back against a stubborn newcomer.
Burro Cheese Kitchen I LLC, which owns the popular Burro Cheese Kitchen food trailers on South Congress Avenue and Rainey Street, has filed a petition and application for a temporary restraining order and permanent injunction against Vox Restaurant Group LLC, which intends to open El Burro Mexican restaurant in the Lamar Union development in mid-October.
Justin Burrows founded Burro Cheese Kitchen in November 2012 and has operated the flagship location of his artisan grilled cheese food trailer at 1221 S. Congress Ave. since February 2013. El Burro, currently under construction at the Lamar Union (1100 S. Lamar Blvd.), is two miles from the Burro trailer on South Congress.
When Burrows discovered via media reports in mid-September that the owners of Vox Table, a new American restaurant in Lamar Union, were planning to open a restaurant called El Burro in that same complex, he sent a cease-and-desist letter claiming that he owned the Burro trademark and that opening El Burro would infringe on the trademark that had been established over several years and confuse the public, according to court documents shared with the Statesman by Burro Cheese Kitchen’s attorney, Kareem Hajjar. Hajjar maintains his client has a common law trademark on the name and logo of “Burro.”
Vox owner Vincent Manguino responded to Burrow’s letter via email, according to exhibits in the case, and stated that while he was “not interested in the name El Burro,” his business partner, Brent Oxley, founder of Houston-based web hosting company HostGator, was “not interested in changing the name, as it holds a special place in his heart as he is a die hard conservationist and one of his endeavors is to help increase the population of Nubian Asses.”
The Nubian ass is a subspecies of the wild African ass and one of the ancestors of the domestic donkey, according to the International Union for Conservation of Nature.
The correspondence from Manguino also stated, “I seriously urge you to come out to the ranch with me and perhaps try and help persuade my partner to use another name for the restaurant. Please let me know if you would like to join.” In his email, Manguino said his investor, who believes he owns the only surviving Nubian asses in the world, intends to use his profit proceeds from El Burro to help pay for care of the animals.
When Burrows responded to reiterate concern about consumer confusion with the trademark and offered to sit down and discuss the matter, Manguino did not respond, according to the court filing.
Instead, Burro Cheese Kitchen asserts, a person dressed in a donkey head costume appeared in front of the Burro Cheese Kitchen trailer on Sept. 4, holding a sign reading, “No cheese! Save the donkey.” According to court papers, the costumed person also passed out fliers accusing Burro Grilled Cheese of bullying El Burro and putting the raising of money for the care of Nubian asses in peril. The picketer also passed out a flier with a redacted version of Burro Cheese Kitchen’s cease-and-desist letter.
Hajjar said he has been in some contentious disputes throughout his career representing restaurants and bars but has “never seen anyone use these kind of passive-aggressive tactics in Austin before.”
Burrows filed his temporary restraining order three days later. The filing requests that the court prohibit the defendant from opening or operating a restaurant under the name “El Burro” or advertising or marketing one, as well as prohibit the defendant from making any slanderous, libelous or defamatory statements about the plaintiff.
“The restaurant community in Austin is pretty small and fairly tight-knit and for the most part collegial, and this has not been,” Hajjar said.
Manguino says he sees the court filing as a type of harassment.
“It’s unfortunate that we are being harassed despite many differences in our concepts,” Manguino said in a written statement provided to the Statesman. “We hope to come to a quick resolution so both of us can continue serving the Austin community with delicious food and drink.”
While some may question whether these near-extinct donkeys even exist, Hajjar is not interested in speculating.
“They have not shown us proof of the existence of the donkeys. In truth, though, the donkeys are not relevant to the matter at hand, regardless of their existence,” Hajjar wrote in an email. “Both my client and I are animal lovers, but this issue doesn’t have anything to do with being an animal lover. It has to do with violation of a trademark. My client hopes that the infringing business is ultimately hugely successful, and if the donkeys do exist, that the proceeds benefit them. But, that business cannot be allowed to operate under the name ‘El Burro’.”
Hajjar was sanguine when asked how he saw the case unfolding.
“I think Texas law is on our side,” Hajjar said.]]