On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Bergen County, C-250-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S.L. Reisner and LeWinn.
This is a common law trade name*fn1 infringement case involving a dispute between two restaurants. Defendant Greek Village, Inc. appeals from a July 17, 2007 trial court order enjoining defendant's use of the trade name "Greek Village" for its restaurant or for defendant's corporate name. We affirm, substantially for the reasons stated in the written opinion of Judge Doyne, issued July 9, 2007.
The facts are discussed at length in the judge's opinion and are summarized here. Plaintiff Greek Gourmet, Inc. sued defendant on June 26, 2006, claiming on a variety of legal theories that defendant was wrongfully using plaintiff's trademark "Greek Village."*fn2 The proofs presented at a bench trial established that plaintiff had been using the name "Greek Village" since 1998, when it opened the Greek Village restaurant in Northvale, Bergen County. The defense conceded that plaintiff's use of the name had generated good-will among its customers.
In 2006, defendant opened a restaurant in Edgewater, Bergen County, using the name "Greek Village Taverna." At the trial, defendant's owner, Peter Hadjiyerou, admitted that he chose to use the name despite having received a cease and desist letter from plaintiff's counsel prior to opening the restaurant.
Hadjiyerou also admitted that the Greek Village trademark had little value to his business, that he had not made any significant investment in that name and he did not care about his right to use it.
Moreover, Hadjiyerou admitted that despite plaintiff's objections, he intended to open additional restaurants called "Greek Village" in Montclair and Glen Rock.*fn3 Although Hadjiyerou, who owns several restaurants, claimed he had never heard of plaintiff's restaurant before he started planning his own, the judge did not find this testimony credible. He concluded that defendant was on notice that plaintiff was using the Greek Village name, although plaintiff had not registered "Greek Village" as its alternate name pursuant to N.J.S.A. 14A:2-2.1(1)(c).
Plaintiff's vice-president and manager, Miltiades Arimblias, testified that the two restaurants had similar menus, serving traditional Greek food, although defendant's menu was presented in a fancier format and was somewhat more extensive. Plaintiff's establishment was smaller, with fewer tables, and served more take-out food, while defendant's restaurant was larger, fancier and more expensive. The two restaurants were approximately ten miles apart as the crow flies, or within sixteen miles driving distance. The restaurants used similar advertising. According to plaintiff, the similar names had created confusion in the marketplace among suppliers and credit card issuers.
Relying on American Home Mortg. Corp. v. American Home Mortg. Corp., 357 N.J. Super. 273 (App. Div. 2003), Judge Doyne concluded that plaintiff was entitled to protection of its common law trademark "Greek Village":
By [defendant's] concession, the names utilized are arbitrary thereby entitling the name to greater protection. The character of the businesses [is] essentially the same, and the manner of marketing the businesses [is] the same. Although questions may currently arise whether the plaintiff and defendant are direct competitors, there can be no question the defendant's expansion plans, when effectuated, will make the parties direct competitors in the same geographic area. . . . [I]t strikes an incredulous [chord] to suggest defendant had no knowledge of the plaintiff's establishment and its utilization of the mark, Greek Village.
Relying on Great Atlantic & Pacific Tea Co. v. A & P Trucking Corp., 29 N.J. 455, 460 (1959), the trial judge also reasoned that in order to protect plaintiff's business reputation, an injunction would be ...