While Matador has become a staple of Market Street, the restaurant is currently on trial in a lawsuit that could prevent them from using the rustic d/cor and Tex-Mex recipes that have made it a favorite spot in Ballard.

Brian Hutmacher, founder of the Queen Anne restaurant Peso's Kitchen and Lounge, filed a lawsuit in January 2007 accusing founders of Matador restaurant chain of replicating a decor unique to his restaurant, stealing recipes and consequently hurting the business at Peso's.

It is a dramatic story of two once friends: Hutmacher and Nate Opper, who worked as a bartender and manager at Pesos between 1999 and 2004.

In 2002, Opper and his business partner Zak Melang told Hutmacher they were planning to start up their own bar in Fremont. They described their plan with specific details, including the name "The Cellar."

According to Hutmacher's original suit, Opper later abandoned that idea and claimed that he was planning on opening a "Texas-Southern barbecue-themed restaurant."

Hutmacher supported his friend and even considered investing in the project.

In late 2003 Opper informed Hutmacher that he planned to name his restaurant "Matador."

Initially Hutmacher was concerned that the name would be too closely associated with Matador logo on Peso's menus and printed media, but Opper assured him that it was still going to be southern Texas themed.

A few months later, Opper and Melang informed Hutmacher that they were going to make Matador a Mexican themed restaurant, but with d/cor and menu distinct from Peso's. Meanwhile, Opper was still bartending at Peso's so, according to Hutmacher's complaint, "he would have continued access to Peso's confidential and proprietary information and trade secrets."

In February 2004, when Hutmacher attended the opening night of Matador's first location in Ballard he was shocked to find very familiar wrought-iron decor, warm-colored paints and a menu where he alleges eight of the eleven items were identical to those offered at Peso's.

Hutmacher said that because the restaurants are so similar consumers frequently assume that the two restaurants are related.

In the suit, he calls Pesos a destination restaurant for more people than just those living in Queen Anne. With Matador's four locations, consumers are less likely to travel to the Queen Anne lounge.

The trial began Sept. 15. Hutmacher has filed suit against not only Opper but also against several others of Matador's investors, designers and decorators.

The crux of the lawsuit lies in Hutmacher's claim that Peso's trade dress - the "look and feel" of the restaurant - is inherently distinctive and has commercial value.

According to Michael Atkins of the Seattle law firm Graham and Dunn, who specializes in trademark law, Hutmacher must prove that the unique qualities of its menu and d/cor are being copied by Matador and that customers are confused as to which restaurant they are attending.

"It's got to be distinctive," Atkins said. "It's the unique aspects that the court is going to focus on. If the court finds that those things are copied then Peso's is going to win.

"Peso's is saying that when you walk in, not by the sign on the door but by the interior, you know you're in a Peso's restaurant."

The restaurants certainly have a few similarities. Metalwork artist Mark Stevens helped create the decor of both restaurants while Shane Opper allegedly used the wall and ceiling treatments he'd learned at Peso's to decorate Matador.

Today, there also remain some similarities in the two restaurant's menus. Both Peso's and Matador offer starkly similar garlic or habanero prawns, carne asada surf and turf, stuffed jalapenos and braised carnitas dishes.

Hutmacher alleges that Opper had access to Peso's computer records while he was temporarily a manager from 2000 to 2002.

Contrarily, Matador's Web site claims that Melang is responsible for creating the restaurant's rustic d/ecor and that Opper collaborates with Matador's executive chef Rodel Borromeo to create their menu.

If Peso's does win, Atkins expects the plaintiff will ask for an injunction to stop Matador from operating as long as it continues to imitate qualities ruled distinctive of Peso's.

Hutmacher's complaint also requests damages, including reimbursement for his attorney and legal fees.

According to Hutmacher's complaint, he frequently voiced his objections to Matador infringing on Peso's trade dress over the years, but did not file a lawsuit until January 2007.

The timing could hurt his case. According to equitable defense laches, if a plaintiff waits too long to assert his rights he essentially gives them up.

Meanwhile neither restaurant seems to be hurting for business. Matador now has four locations in Ballard, West Seattle, Tacoma and Redmond with plans to open a fifth in Portland.

In Queen Anne, Peso's earns approximately $4 million a year.

According to Atkins, because a jury trial has been waived, King County Superior Court Judge Catherine Shaffer could rule on the case as early as this week.

Rose Egge can be reached at 932-0300 or rosee@robinsonnews.com.