Garcia Estate Sues Chain

In the early 1990s, Ben and Jerry's began selling an ice cream flavor called Cherry Garcia, named after Grateful Dead guitarist Jerry Garcia. At the time, the musical icon had to be convinced by his lawyer that he would lose control over the use of his own name unless he pursued legal action. Ben and Jerry's quickly admitted its mistake and struck a licensing deal with Garcia.

Now, almost a decade after his death, the Jerry Garcia Estate LLC has filed a lawsuit against an up-and-coming burrito chain for similar reasons. Claiming that the chain used Garcia's likeness in violation of federal trademark and copyright laws, Garcia's heirs seek an unspecified amount of money in damages.

The suit alleges that Moe's Southwest Grill hung artistic portraits of Garcia in more than 130 locations and used the artwork as part of the chain's overall marketing strategy. The portraits were accompanied by altered lyrics to the Grateful Dead song "Casey Jones."

But what would Jerry do? After all, the guitarist and painter always encouraged artistic expression and embodied the ideals of hippie counterculture almost to a fault -- he thought that people should be relatively free to do as they please. Many Deadheads followed the band around the country, selling homemade goods -- including portraits of the guitarist -- in the parking lot outside the shows.

Longtime Grateful Dead publicist and band historian Dennis McNally explains why this case is different: "Moe's is a multi-million dollar company -- this is something more (or maybe less) than just plain 'people.' The idea that such an entity would profit on him would have bothered him considerably. Even more, the fact that they've appropriated his and Robert Hunter's lyrics . . . believe me, that's something Jerry would not have tolerated."

With locations in twenty-seven states, Moe's Southwest Grill is a rapidly growing "fast-casual" restaurant chain, as 800 new franchises are currently in development. Portraits of other deceased musicians -- including Bob Marley, Jim Morrison and Janis Joplin -- hang on the walls of the music-friendly restaurants. The chain is part of Raving Brands Inc., which also operates six other restaurant brands, including Planet Smoothie, Doc Green's Gourmet Salads and Mama Fu's Asian House.

Matt Andrew, vice president of Moe's Southwest Grill, says that Garcia's estate "claims we used Mr. Garcia's name and image to promote sales, but we disagree with that characterization."

Representing the estate, McNally counters: "If you own a restaurant chain, and you have a painting of an artist in not one, but 130 locations, would you not say that's advertising?"

The irony is that with its off-kilter burrito names such as "Joey Bag of Donuts," the chain may just embody the same type of humor that Garcia was known to embrace. The "Alfredo Garcia" is a chicken, steak or tofu fajita with lettuce, salsa and shredded cheese.

In an official written statement, Andrew says: "We doubt seriously anyone would need to remind Mr. Garcia of the First Amendment were he alive."