August 8, 2008
GREEK GOURMET, INC., PLAINTIFF-RESPONDENT,
GREEK VILLAGE, INC., DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 29, 2008
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 warranted even if the two businesses did not currently compete:
Defendant has conceded plaintiff's utilization of its mark has generated good will with its customers. There need necessarily be protection against unfair trade competition, even if no competition exists.
The judge concluded that plaintiff was entitled to an injunction:
Plaintiff has demonstrated, convincingly, its common law rights to its trademark "Greek Village" acquired through use over the last 8 or 9 years warrants protection. This is particularly so in light of the defendant's expansion plans, its lack of investment in the mark "Greek Village," Hadjiyerou's acknowledgement the mark means nothing to him, and the minimal amount defendant has invested in either the utilization or adoption of the disputed mark. Any detriment to the defendant has been caused by his own actions and the utilization of the mark for in or about a one year period is remedied with little damage to the defendant.
On this appeal, defendant raises the following points for our consideration:
POINT I: PLAINTIFF DID NOT MEET ITS BURDEN OF PROOF.
POINT II: THE COURT IMPROPERLY EXERCISED ITS DISCRETION UNDER N.J.R.E. 201(b).
POINT III: THE COURT BELOW IMPROPERLY ADMITTED AND RELIED UPON HEARSAY.
POINT IV: THE COURT BELOW MIS-APPLIED THE HOLDING IN AMERICAN HOME MORTGAGE.
POINT V: PLAINTIFF HAS UNCLEAN HANDS AND SHOULD BE DENIED EQUITABLE RELIEF.
Having reviewed the record, we conclude that these arguments are all without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As Judge Doyne's opinion is supported by substantial credible evidence and is consistent with applicable law, Rule 2:11-3(e)(1)(A), we affirm substantially for the reasons stated in the judge's cogent written opinion. We add the following comments.
We find no error in the judge's evidentiary rulings, including admitting in evidence a number of documents showing the results of internet searches for Greek restaurants in the Bergen County area. Those documents also support the judge's finding concerning the number of Greek restaurants in the area. Contrary to defendant's contention, the judge did not place reliance on an article concerning a restaurant review. Finally, we will not disturb the trial judge's credibility determinations. See State v. Locurto, 157 N.J. 463, 474-75 (1999).
On this record, the trial court's decision is entirely sound. Plaintiff had a long-established common law trade name. Defendant was placed on notice of plaintiff's trademark or trade name before it opened its restaurant, and chose to ignore plaintiff's objections. Further, defendant was planning to expand into plaintiff's territory by opening even more restaurants with the same name. Finally, by defendant's own admission, it had no real interest in or need to use the "Greek Village" name.
Defendant's reliance on Ryan v. Carmona Bolen Home for Funerals, 341 N.J. Super. 87 (App. Div. 2001), is misplaced. As that case recognized, a person may be enjoined from using his or her name in a commercial enterprise when the use of that name has the capacity for confusion with another well-established business, even though they may not be in competition with one another. Great Atlantic & Pacific Tea Co. v. A & P Trucking Corp., 29 N.J. 455, 458 (1959). The goodwill generated by the name is a valuable commercial asset entitled to protection. [Id. at 93.]
See also American Home Mortg. Corp., supra, 357 N.J. Super. at 279 ("The essential theory is that when an individual or entity has expended effort to create good will for a product associated with a name, that name has become a valuable commodity entitled in general to protection.").
Moreover, as we acknowledged in Ryan, and as the Court recognized in Great Atlantic & Pacific Tea Company, supra, it is not necessary to demonstrate actual consumer confusion. The potential for confusion is sufficient:
While . . . plaintiffs need not demonstrate actual confusion in the public, nor an actual intent by defendants to practice deception, the existence of either of those factors is of significance in determining whether plaintiffs are entitled to equitable relief. In addition, . . . the number of instances of confusion shown is not controlling since the extent of actual confusion is difficult to demonstrate.
Great Atlantic & Pacific Tea Co., supra, 29 N.J. at 459. Rather, plaintiffs merely need demonstrate a potential for confusion in order to be entitled to injunctive relief. [Ryan, supra, 341 N.J. Super. at 94.]
Further, as Judge Doyne correctly recognized, an "arbitrary" trade name such as Greek Village is entitled to greater protection than a "merely descriptive" name, such as Greek Restaurant. See American Home Mortg. Corp., supra, 357 N.J. Super. at 279-80 (denying relief where plaintiff's trade name was merely descriptive, its mode of marketing was different than defendant's, its geographic location was different, and there was no evidence that defendant adopted its similar name in an effort to take advantage of plaintiff's good name). In light of Judge Doyne's factual findings, which are supported by the record, injunctive relief was warranted.