He made his living through performing at sprawling concerts that reveled in bohemian abandon.

But nine years after his death, his heirs have filed a lawsuit against an Atlanta burrito chain to try to protect his image.

In a federal suit filed in Atlanta Dec. 8 against Moe's Southwestern Burritos LLC, Garcia's family is alleging the burrito chain has used Garcia's image unlawfully to sell tacos and Southwestern food.

"Though he never took himself too seriously, Jerry Garcia could have told you that his name stood for a very few things: An unwavering commitment to his muse and his music, and to the good name of The Grateful Dead. In pursuit of that, he and his band mates rejected dozens of money-making opportunities," the Jerry Garcia Estate LLC, said in a statement. This legal entity includes Garcia's widow, his children and his brother.

"The idea that a sizable corporation would use his name and image without permission to sell burritos (and, more to the point, make money) is obscene; it turns Jerry into a little more than a taco huckster," the estate said.

Moe's stands for Musicians, Outlaws and Entertainers, and the chain has been using images of deceased celebrities including Jim Morrison, Janis Joplin, Bob Marley, Frank Sinatra, Elvis Presley and others as restaurant artwork and as the inspiration for the names of menu items. Food offerings include the "Alfredo Garcia," a fajita dish, the Full Monty taco, and a Puff the Magic Dragon taco. The Garcia estate suit accuses Moe's of violating federal trademark and copyright laws and state fair trade laws and is asking for unspecified but "significant" damages, the estate's lawyer said.

Specifically, the suit said paintings of Garcia were installed at more than 130 franchises, and the images were used in print advertising without the estate's permission.

Marketing Moe's
Moe's, part of the Raving Brands Inc. restaurant franchise, was founded in Atlanta in 2000 and is run by Martin Sprock. He also developed the Planet Smoothie and Mama Fu's Noodle House chains.

Both Sprock and his wife, Leann, are named in the suit for their role in creating the Moe's marketing plan that used Garcia's image.

The suit also said the trademarked lyrics of the Garcia song, "Casey Jones," were altered and hung in stores. The changed lyrics read, "Trouble Ahead, Trouble Behind, Just Have My Taco Ready on Time," in a violation of a trademark on the song, the suit said.

The burrito chain had the right to use the painting that was created by an artist, even if it looked like Garcia, a Moe's executive responded in a written statement.

Matt Andrew, vice president of finance at Moe's, also said Garcia's estate is only "about the money."

Said Andrew: "As for Moe's, we recognize that the First Amendment protects an artist's ability to create artwork and anyone's right to display that artwork if in lawful possession of it, even if it bears similarity to a public figure. We doubt seriously anyone would need to remind Mr. Garcia of the First Amendment, were he alive."

Moe's counters the artwork was removed "immediately" after the company was contacted by Garcia's estate.

Michael Crain, of Crain & Davis in Athens, contends it actually took several months. Crain is one of the estate's lawyers.

"We're greatly pleased they took it down after we complained to them for several months," Crain said, but he said the Garcia family still felt there were grounds for a legal complaint.

"The Garcia estate protects Mr. Garcia's image very strongly and greatly controls the use of the image in marketing," Crain said.

Letting unlicensed use of the image persist is "unfair" to commercial enterprises that properly sought the use of the Garcia image, such as the Ben and Jerry's ice cream flavor Cherry Garcia, Crain said, and J. Garcia Neckties and J. Garcia Wine.

"The Jerry Garcia Estate LLC evaluates each proposal to use Jerry's art, music, name, and likeness in light of whether it maintains the integrity and independence of his legacy, and no one can just take that away from his family and fans," the estate added in its statement.

Still, Moe's complained the estate sued even after the images were removed and is "asking for substantial amounts of money."

Crain said it's "premature to give the public a dollar amount." He added he's in talks with Moe's but wouldn't comment on whether Moe's has offered a settlement.

More trouble brewing?
Crain also couldn't "comment on whether we're talking to any of the other estates [of artists]. But one would think that Moe's should be worried about these other estates as well."

Moe's has seen other legal troubles brewing, including a recent spat with Colorado-based burrito chain Qdoba over the term "naked" to describe a tortilla-less burrito.

Qdoba, which trademarked that term in April, sued Moe's in Denver for having a "Buck Naked" burrito on its menu, according to the Denver Business Journal, a sister paper of Atlanta Business Chronicle. Qdoba is owned by Jack In The Box Inc.

© 2005 Atlanta Business Chronicle
By Rachel Tobin Ramos