Roxy's doesn't cut the mustard in Jerry's claim to Deli Fame.

MAYBE those bagels and blintzes are just too famous.

The logo, menu, advertising, posters and movie-style lighting of Roxy's Famous Deli in Thousand Oaks have been a sour subject for Jerry's Famous Deli since 1991, when Roxy's opened at 1345 E. Thousand Oaks Blvd.

Earlier this month, a 9th Circuit Court of Appeals panel issued the third ruling in a decade finding Roxy's illegally copied the Broadway show posters, circular logos, menu layout and red and white colors with green accents that have become affiliated with the Studio City deli chain.

"You always know you're in a Jerry's," said Steven Young, a partner at Freeman Freeman & Smiley LLP representing Jerry's. "They set the look, menu and general decor apart from any and all other delis throughout the area. The only time there was ever an issue was when Mr. (Constantino) Papanicolaou decided the best way to achieve success of his restaurant was to make it look like a Jerry's to confuse the public."

In 1993, Papanicolaou, Roxy's proprietor, settled a trademark dispute with the owners of Jerry's by promising to change his restaurant's logo and modifying its menu. Four years later, Jerry's owners sued Roxy's again, claiming a breach of the settlement agreement. A second settlement included a court order. In 1999, Jerry's sued a third time, seeking lost profits, attorneys' fees and a contempt order against Roxy's for violating the court order.

Roxy's appealed after a U.S. District Court judge ruled in Jerry's favor.

In the most recent ruling, Circuit Judge M. Margaret McKeown dismissed Papanicolaou's claims that the colors and Broadway lettering used in its restaurant materials were not "prominent" enough to violate Jerry's trademarks and that the menu layout was in a different font.

Also, she dismissed Papanicolaou's claim that the studio lighting is different from the lighting used at Jerry's.

"This argument is odd indeed," McKeown wrote. "Apparent in the photographs of the interior of Roxy's are lighting fixtures that look like the type found in theaters and movie studios. Whether these are termed 'movie style' or 'studio' lighting fixtures does not change the fact that their use is limited by the terms of the injunction."

The appellate panel ordered a lower court to re-calculate its $376,920 award to Jerry's in lost profits, however. Daniel McCarthy, a partner at Hill Farrer & Burrill LLP representing Roxy's, did not return calls.

Sheppard Send-Off

Sheppard Mullin Richter & Hampton LLP has opened its first New York office, at 30 Rockefeller Plaza.

Four litigation attorneys previously at White & Case in New York will join the firm, including partner James McGuire, who will head the office. McGuire is a former Assistant U.S. Attorney at the Southern District of New York with expertise in tax, money laundering, antitrust matters and grand jury investigations. In civil cases, McGuire has represented Honeywell Inc., Arthur Andersen LLP and CompUSA Inc.

Three entertainment attorneys from Sheppard Mullin will join the New York office, including Robert Darwell, co-chairman of the firm's entertainment and media group, and entertainment partner Ben Mulcahy. Both will divide their time between New York and Century City; their clients include Walt Disney Co., Paramount Pictures and New Line Cinema. An attorney in finance and bankruptcy and a partner in corporate tax at the firm will join the office while maintaining affiliations with the Washington, D.C., office, which opened in 2003.

Staff reporter Amanda Bronstad can be reached at [phone], ext. 225, or at [e-mail].