Motion: Escobar suit against Aspen bar “pure fiction”
A state public health order has kept the Escobar Aspen nightclub closed since at least June, while a lawsuit its attorney described as “pure fiction” has been hanging over it since it was filed in September.
That’s when a company called Escobar Inc. sued Aspen businessman Ryan Chadwick and three companies under his control — the Aspen bar, Escobar Vodka and Escobar Aspen — in Denver federal court.
The $5 million suit — intended to force Chadwick into ceasing and desisting from using the Escobar monikers — was served on the defendants in December. Escobar Inc.’s suit maintains it holds intellectual property rights to the name and also purports the company to be founded by Roberto Escobar, brother of the late Colombian drug lord.
Earlier this month, defense attorneys introduced a motion to dismiss casting the lawsuit in a questionable light and contending Escobar Inc. rents a UPS mailbox but calls it company headquarters.
Among its contentions are that Escobar Inc. has no legal standing to claims for right of publicity — an intellectual property right prohibiting the misappropriation of a person’s likeness, name or photograph, for commercial gain.
Two of Escobar Inc.’s claims are for right of publicity, a law California recognizes but Colorado does not.
Yet the defense’s motion argued Escobar Inc. has no legal standing in the Golden State and its right of publicity claims “fail under both California and Colorado law.”
The motion cited the Escobar website’s Colombia address and the company’s not being registered to do business in California. As well, the company’s mailing address on its court complaint actually matches the address of a UPS store in Beverly Hills, California, the motion said.
“Here, it can be readily determined both that plaintiff’s purported place of business in California is merely a rented post office box. Further plaintiff’s own website indicates its place of business is in Colombia. Finally, the California Secretary of State shows that plaintiff is not registered to do business in California,” said the motion.
Chadwick said Escobar Vodka remains in circulation and for sale, and the bar will open once health orders are lifted.
In the meantime, a scheduling conference in the case is set for Feb. 11 before Magistrate Judge Scott T. Varholak.
Presiding Chief Judge Philip A. Brimmer, in a court order Jan. 6, noted “this court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding“ in the event one of those propositions is brought to him by either the plaintiff, the defendants, or the magistrate judge.
The motion to dismiss said Escobar Inc.’s suit does not warrant the court’s time.
“Many of the claims are entirely unclear, others are patently preempted, and all of them appear to be based in pure fiction,” the motion said.
Attorney Craig J. Mariam of Boise, Idaho, is representing the defendants in the case.