Patsy's Brand, Inc. v. I.O.B. Realty, Inc.

Facts

  Patsy's (P) commenced this action for trademark infringement against the owner of Patsy's Pizzeria, I.O.B. Realty, Inc. (D), its principals, Frank Brija and John Brecevich (Ds), and one of its licensees. P motioned for a preliminary injunction, asserting it had been selling sauce under the name Patsy's since 1994, and that subsequently, Ds began selling sauce under the same name. Brija (D) submitted an affidavit where he swore that he first sold jars of his sauce in 1992; that the design for both labels were taken directly from PATSY'S (R) old menu covers and other features of our restaurant that Ds have been using for over six decades. The labels display an exact copy of PATSY'S (R) restaurant's logo, colors, and artwork that we have been using since it opened in 1933. Both labels have the name Patsy's written in script, exactly as it was written on our menus in 1933 and other menus since that time. The sauce label also contains a picture of a woman drinking from a wine glass, exactly as it appeared on our menu in 1933 and other later menus. D swore that labels were ordered in significant quantities in March and April of 1993. D’s brief asserted that: 'Defendants have been selling sauce in a mason jar with the label at issue since at least the spring of 1993.' In reply P pointed out that 1) Ds' sauce label contained a bar code that did not exist until 1998; 2) the statement on the label, 'For over 65 years PATSY'S Restaurant has served its faithful clientele', would not have been true until 1998 because the restaurant opened in 1933; and 3) the '1993' invoices from the printer listed a telephone number with an area code that did not come into existence until several years later, Ds' then counsel disclaimed any reliance on the documents and later withdrew from representing Ds. Pennie & Edmonds appeared for Ds. Brijaa (D) said that he had simply been confused and attached a label created in 1999 to his papers rather than the original label he created in 1993. When asked about the phony documents produced from the printer, D blamed Richard Mazzella, the person at Keller Labels who handled his account. According to D, Richard Mazzella took it upon himself to fabricate the records because he no longer had his records from 1993, and he did not tell this to D. To support his story, d produced a signed statement from Mr. Mazzella to that effect. Mr. Mazzella's lawyer said that if Mazzella were subpoenaed, he would testify that he had not even done business with Ds in that time period. P moved for summary judgment. Pennie & Edmonds filed a response with a new affidavit. D again attested that the label had been created in 1993. Pennie & Edmonds stated in its brief in opposition to the summary judgment motion: There has been confusion, engendered by P, between the two different sauce labels used by Ds. Contrary to P's arguments, Ds never claimed that the label in issue, which was designed and printed in 1999, was created in 1993. The court ordered counsel to show cause why sanctions under Rule 11 should not be imposed, the Court noted the affidavit of D cited by counsel was also false. The court stated; The problem with this story is that the label, which simply shows the word Patsy's in stylized script against a dark background, also contains on its face clear evidence that what Brija says is not true. Right underneath the letter 'S' on that label appears the symbol (R), signifying that the mark is a registered trademark. However, I.O.B. did not apply for the trademark Patsy's for restaurant services until 1995, and it was not issued until 1996. Thus, the label allegedly created in 1993 or 1994, which depicts a registered mark, could not have been prepared at that time.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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