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New twists, lawsuit in East Spokane pot shop imbroglio

Old Fashioned Fun Arcade’s original location at 3917 E. Main Ave.in June 2017. A Spokane County judge this month dismissed a claim by the owners of the arcade seeking to prevent the move of a marijuana store within 1,000 feet of the business’s two locations along East Sprague Avenue. (Colin Mulvany / The Spokesman-Review)
Old Fashioned Fun Arcade’s original location at 3917 E. Main Ave.in June 2017. A Spokane County judge this month dismissed a claim by the owners of the arcade seeking to prevent the move of a marijuana store within 1,000 feet of the business’s two locations along East Sprague Avenue. (Colin Mulvany / The Spokesman-Review)

For months, Spokane attorney Marco Barbanti has dismissed the notion that a new arcade in east Spokane was created solely to block expansion by local marijuana entrepreneurs.

Now, he’s representing those entrepreneurs’ direct competitors – also members of the city’s fledgling marijuana industry – in a trademark lawsuit originating in Seattle.

The trademark challenge is the latest legal spat embroiling members of the fledgling pot industry that has taken root in the industrial and commercial core on the eastern edge of town. As retailers and producers scramble to compete in an industry that some say is overly regulated and stifled by local and state lawmakers, it may not be the last.

Barbanti called his representation of the owners of Spokane’s Starbuds store – which faces a trademark challenge not from the coffee roaster of a similar name, but from a competing marijuana business operating out of Seattle – a “nonissue.” The move, however, further ties him to a complex and still unfolding drama that began last year, when Starbuds’ owners faced the prospect of direct competition from another local pot business, Smokane.

Smokane’s move to Sprague Avenue, approved months in advance by the city, was temporarily blocked by the appearance of the Old Fashioned Fun Arcade in December 2016. The business ultimately required an intervention by the Spokane City Council to complete the move, which continues to be contested by a lawsuit from the arcade – a lawsuit filed by Barbanti.

Barbanti has cited attorney-client privilege in keeping the people behind the arcade confidential.

Smokane’s move to East Sprague puts it in competition with Todd and Elizabeth Byczek, the husband-and-wife team who own both Starbuds, on Francis Avenue, and, more pertinently, Lovely Buds, located just blocks from Smokane’s new location on East Sprague. Barbanti said he agreed to represent the pair in the trademark lawsuit only to stop a default judgment against them, which occurs if an attorney doesn’t step forward within 20 days to answer a complaint.

“If someone’s willing to pay me to do that, I’m going to take it,” Barbanti said. “I need to have some turkey on my table for Christmas, too.”

Jay Low and Sothy Hul, the owners of Smokane, are considering their own legal action against the arcade.

Last fall, before they had finalized their plans for a move from a warehouse on Ralph Street to a new storefront on bustling Sprague, they said the Byczeks approached them about a potential partnership. Low and Hul declined, despite what they said were threats of a “price war” from the Byczeks.

Barbanti filed the paperwork to establish the arcade a few months later.

The arcade, which opened in December 2016, four months after Low and Hul had received approval from the city to begin building improvements on their new storefront on Sprague, imperiled the move because state laws provide 1,000-foot “buffers” from certain kid-friendly locations prohibiting marijuana businesses from operating.

One of those locations is an arcade, but the City Council, led by an unlikely marijuana ally in Councilman Mike Fagan, temporarily shrank the buffer in June to pave the way for Smokane to move.

Barbanti said the Byczeks have no interest in the Old Fashioned Fun Arcade, which now operates in two locations within 1,000 feet of both Smokane and Lovely Buds on Sprague. The arcade is run by a volunteer and makes most of its money from private parties, according to legal filings, though the state has challenged the locations as legitimate arcades because of the lack of machines and their location in an industrial area.

The Byczeks have not responded to requests for comment on the trademark lawsuit or the partnership offer with Low and Hul, but Barbanti said the owners of Smokane were exaggerating the forcefulness of the business discussions to drum up support for their plight as a displaced business.

“I don’t have any heartburn over that, it’s a free country,” Barbanti said. “It helps their cause if they can portray themselves as the victim, because victims get some sympathy.”

Smokane continues to operate in its location on East Sprague as a result of the council’s action, as does Lovely Buds.

The Starbuds shop on Francis owned by the Byczeks is also open.

In another twist, Barbanti is listed as the president of Royal Pottage Enterprises, the corporation that owns the building at 827 E. Francis Ave. where the business has operated since May 2016, according to records of the Washington State Liquor and Cannabis Board.

The signage at the location was a bit muddled Wednesday, with a welcome mat greeting visitors bearing the Simply Cannabis name that was originally used for the store. An advertisement on the website Leafly, and filings with the Liquor and Cannabis Board, indicate the store’s name as Starbuds for several months this fall, as do a pair of billboards that still stand near the location. The sign on top of the building bears the name Lovely Buds, the same as the store on Sprague, and records of the Liquor and Cannabis Board identify the location as Lovely Buds North.

The trademark lawsuit, filed Dec. 5 in Spokane County Superior Court, alleges infringement of a trademark filed in October 2013 by Seattle-based attorney Robert McVay. The trademark of the name Starbuds includes coverage of “useable marijuana, marijuana-infused products … (and) retail sales of the foregoing.”

Todd Byczek filed his own trademark for Starbuds Cannabis on Sept. 29, which was to remain in effect until March 28, according to filings with the Washington secretary of state’s office. That same day in September, the owners of Starbuds in Seattle sent a cease-and-desist letter to the Spokane business demanding it stop using their trade name.

The attorney representing Starbuds in Seattle did not respond to a request for comment for this story. The lawsuit states the owners of that business became aware of the name change for the shop in Spokane in September and sent the cease-and-desist letter, followed by notice of a lawsuit to the Byczeks in Spokane. The lawsuit alleges the owners responded to the lawsuit with a phone call indicating the business would stop using the name “soon.”

Barbanti said he hadn’t reviewed the entirety of the complaint against his clients for copyright infringement, but before taking the case he spoke with them and believes their defense has merit.

“They answered those questions to my satisfaction, that the case is not nearly as clear-cut as when you read one side of it,” Barbanti said.


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