Malicious attempt to shut down new business by competitor claiming unfair competition and misappropriation of copyright rejected by Supreme Court, Queens County.
Pardalis & Nohavicka, LLP represented Defendants, former employees of a restaurant who wanted to make a go of it on their own. The outraged employer filed for a Temporary Restraining Order, and injunctive relief, seeking to shut the new business down under the theory that the former workers could not opening a competing restaurant in the vicinity of the employer's restaurant. Ever.
Plaintiff had owned and operated "The Chicken House," in Kew Gardens since 1986. Plaintiff claimed that the defendants intended to open their own restaurant with the same name and identical menu with nominally lower prices four doors away.
PN partner argued that the defendants did not intend to use the name "Chicken House" and were instead operating under the name "Stop And Go Chicken". Additionally, defendants had changed the entire design and look of their menu to avoid any confusion. Moreover, it was pointed out that it is not uncommon in New York City to have nearly identical competitors right on top of each other, such as pizzerias across the street from one another, a Blimpies down the street from a Subway, or a McDonald's right next to a Burger King.
Rejecting the claims of the employer, the Honorable Marguerite A. Grays, J.S.C. ruled that "in light of the undisputed fact that defendants have changed the name of their restaurant...plaintiff's motion for an order restraining defendants from owning, opening and operating a restaurant...has been rendered moot."
Most importantly Judge Grays noted "it is well accepted that menu listings are outside the scope of copyright as they lack the requisite element of originality (see gen. Publications International, Limited v. Meredith Corporation, 88F.3d 473 )."