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Trademark infringement suit filed against owners of Batavia Pontillo's

By Howard B. Owens

Three Monroe County businessmen who bought the former Pontillo's location on East Main Street, Batavia, and reopened the legendary location as "Pontillo's" have drawn the ire of the Rochester wing of the Pontillo's family.

Pontillo's Family Pizza, Inc., led by David Pontillo, nephew and son of the Pontillo's founders, has filed a trademark infringement suit against Batavia Pizza, LLC, owned by Thomas Masaschi, Jeffrey Reddish and Jason Teller.

The trio bought the 500 E. Main Street building and land late in 2009 from a firm that had acquired it in foreclosure. Then they reopened it as Pontillo's Pizzeria in April, hiring one of Salvatore Pontillo's son's, Sam Pontillo, to manage it.

Pontillo's Family Pizza, which overseas the operations of more than a dozen Pontillo's locations in the Rochester area, is claiming that Batavia Pizza never asked for, nor received, permission to use the Pontillo's name.

David's father, Anthony Pontillo, brother of Salvatore, filed for and received a federally registered trademark for "Pontillo's" in 1984.

The lawsuit seeks compensation for damaged business reputation, as well as all revenue and any profits of the new Batavia Pontillo's, plus any damages that might be awarded at trial, plus attorney's fees.

The suit also seeks a preliminary and permanent injunction against Batavia Pizza prohibiting the use of the Pontillo's name by the ownership group.

The Pontillo brothers founded one of the first post-war pizzerias in the United States in Batavia in 1947, and a few years later, Anthony headed out for Rochester to start a chain of pizzerias under the same name.

According to John and Paul Pontillo, there was an agreement between families not to infringe on each other's territory so long as Pontlllo's remained a family business.

In the lawsuit, Pontillo's Family Pizza contends that contrary to an early presentation by the Monroe County businessmen, Sam Pontillo, is not a partner in Batavia Pizza, and even if he were, Pontillo's Family Pizza would not have given him permission to use the Pontillo's trade name in a re-established Batavia enterprise.

"Because of his tax problems, Pontillo's Family Pizza, Inc., will not give Mr. Sam C. Pontillo the right to use PONTILLO'S to operate a pizzeria," reads a letter dated June 18 and written by attorney Stephan B. Salai to an attorney representing Masaschi and his partners.

It was one of two letters the ownership group received from the Rochester Pontillo's demanding that Masaschi and his partners stop using the Pontillo's name.

Sam and Paul Pontillo were operating the Batavia location when mounting debts and tax bills apparently forced them to close the store in November 2008. John Pontillo had also been involved in the operation at one time, and all three brother's dispute just how the family business fell into failure.

Sam has continued to operate the Le Roy Pontillo's, though John has made attempts to acquire it.

There is a pending lawsuit filed by the estate of Elizabeth Pontillo against Sam and Paul.

Previously:

Peter O'Brien

Chelsea perfers Main Street but if I am going to be home by my self, its Pontillos that comes to my door.

And its not like the people of Batavia are going to call it anything but Pontillos

Sep 2, 2010, 11:02am Permalink
Jeremiah Pedro

I wont go back to Pontillos based on a principle. The previous owners ran the business into the ground. Along the way they almost brought another local business with them. Not to mention one of the brothers that ran the business into the ground is and economics teacher at Genesee Community College. I'm not sure that he is the right person to be teaching that course. Or maybe he is, he could say "this is how not to run a business."

Sep 2, 2010, 11:15am Permalink
Gabor Deutsch

I took micro economics with Pontillo. Everything he taught was by the book and in the book. My only complaint was that he checked his cell phone every 10 minutes !

Sep 2, 2010, 5:29pm Permalink
jonathan bell

if you check the national trademark registry it tells you a tradmark is the EXACT spelling and wording pontillo's is trademarked but pontillos isnt just remove the apostrophy and its all done

Sep 2, 2010, 6:32pm Permalink
Beth Kinsley

Jonathan, that is incorrect. First of all, what is the national trademark registry? Are you referring to trademarks registered with the United States Patent and Trademark Office? Nowhere in the USPTO rules do they say the marks can't be identical. The standard is likelihood of confusion, i.e. whether there is a likelihood that the trademark would be confused with a prior trademark (either registered or with common law rights). Simply removing an apostrophe would not even come close to overcoming the likelihood that the two marks would be confused by the general public. I have conducted hundreds of trademark searches for clients to see if a mark is "clear for use" and we would NEVER advise a client that they could use a trademark owned by someone else if they simply remove an apostrophe. They were really left with no choice but to file suit. A trademark owner has a duty to police their trademarks and by allowing someone else to knowingly use their trademark, it could be argued that they waived their rights.

Sep 2, 2010, 9:21pm Permalink
Frank Bartholomew

Beth, not to change the subject, but I would really like to ask you some questions regarding ADHD. If you are uncomfortable with that, not a problem, just thought I'd ask. I would prefer email, or telephone, as it is somewhat of a private matter, could you please let me know one way or another.Thanx,either way.

Sep 2, 2010, 10:44pm Permalink
jonathan bell

unfortunatly beth is wrong and also seeing as how they serve more then pizza they could also become pontillos restaurant and bypass the laws

Sep 8, 2010, 10:17pm Permalink

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