Build-your-own tacos, a checklist ordering method, and a Day of the Dead motif — Cleveland’s Barrio is accusing Columbus’ Condado Tacos of misappropriating these service marks in a recently filed lawsuit.
The story starts back in 2012, when Condado founder and CEO Joe Kahn was co-creator at Barrio with Thomas Leneghan. Leneghan knew he wanted to open a Mexican restaurant, and Kahn pulled together the elements — the Scantron menu, the sugar skull theme — to create Barrio, says Kahn’s attorney Brad Barmen.
“When Joe and Tom were first talking about potentially doing something, Tom indicated he wanted Mexican, but that was the extent of his creative contribution,” Barmen says. “Joe came up with the concept totally… and there is a document that will come out at the appropriate time that is the conceptual, introducing Barrio document, and it clearly indicates in that document that it was Joe’s proprietary information.”
After a dispute between Kahn and Leneghan, Kahn left to execute Condado Tacos in Columbus in 2014. In their separation agreement, Kahn agreed to divest of ownership in Barrio, avoid the use of Barrio’s logo, trade marks and service marks, and refrain from opening a Mexican restaurant within two miles of a Barrio for at least two years.
Now, as Kahn and his partners prepare for an opening in the Pinecrest development in northeast Ohio, Leneghan has sued Condado Tacos for creating a brand so similar to Barrio that “the minute a patron walks into a Condado, the patron is immersed in an atmosphere and embarking on a dining experience that has the look and feel of Barrio,” the lawsuit states.
Each detail, from the Day of the Dead theme, to the preprinted checklists placed at each table with pre-sharpened pencils and brown paper towels, to the foil-wrapped tacos accompanied by a plastic fork, is accused of ripping off Barrio’s concept.
“Simply put, when a patron walks into Condado’s, they are immediately confused as to whether it is actually a Barrio or there is some affiliation between the two,” the lawsuit continues.
Barmen says the Day of the Dead theme isn’t the property of Barrio and that a number of Mexican restaurants utilize it. The same goes for the build-your-own, checklist method of ordering Condado Tacos.
“The idea that the checklist menu was proprietary is about as preposterous as the idea that the Day of the Dead theme is proprietary. Many different types of restaurants use that method of ordering,” Barmen says. “Anything from Italian to Indian to other fast food types of Mexican, the build your own concept has become a huge way to do things in the restaurant industry across the board.”
Condado owners are also accused of using the phrase “In the heart of…,” which in the agreement was off-limits to Kahn. Barmen says that allegation is unfounded and that journalists reporting on the opening of Condado in Pittsburgh and the Short North had used the phrase to describe the restaurants’ locations — “Joe never said it. Condado never advertised with it. That is something that two reporters wrote themselves.”
Barmen says the timing of the lawsuit is peculiar, as Condado has operated without conflict with Barrio for four years. They’ve opened eight locations, five in the central Ohio region and others in Cincinnati, Indianapolis and Pittsburgh.
“It only became an issue when it was announced that Joe was coming back to Cleveland,” he says.
That said, the company doesn’t plan on abandoning its location set for Pinecrest. Condado spokesperson Amanda Gibson said it was an opportunity to be a part of a dining destination that would also see the state’s first Shake Shack (although Columbus will also be getting a Shake Shack at Easton in 2019).
While the lawsuit against Condado has been filed, the defendants have yet to be formally served. Barmen says they haven’t responded but are in the process of preparing their response.
To see the separation agreement, click here.
To see the lawsuit, click here.