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Pizza firms clash over Pontillo's name

Rochester Business Journal
September 10, 2010

A Pontillo family corporation claiming to hold the exclusive right to use Pontillo's as a name for a pizza parlor is suing operators of a Pontillo's Pizzeria that opened last spring in Batavia.

The dispute over the name seems partly to involve a feud among members of the Pontillo clan, whose name has been linked to pizza in this region for decades.

The lawsuit seeks to force owners of the new Batavia Pontillo's to stop using the name and to pay damages to a family corporation that owns the Pontillo's trademark, in an amount equal to any profit the new eatery has reaped while using the name.

The original Pontillo's Pizzeria-at the same address as the new Pontillo's, 500 E. Main St. in Batavia-was founded by several brothers in 1947. It was one of an early crop of pizzerias that began to dot U.S. towns and cities after World War II.

By the time the Batavia Pontillo's closed in 2008, a separate Pontillo's chain started by one of the brothers, Anthony Pontillo, had 22 Rochester-area pizzerias, all bearing the family name.

Others, whose connection to the Monroe County Pontillo's is not clear, have arisen from time to time in locations farther afield, including Cortland and Lockport.

A landmark for decades in Genesee County, the Batavia Pontillo's closed under a cloud of debt. State tax liens recorded with the New York secretary of state detail more than $105,000 in back taxes owed by the Batavia pizzeria.

The Batavia Pontillo's building went into foreclosure in 2008 and was purchased by a group of investors including Thomas Masachi, a principal of Patriot Cos., a Rochester-based real estate firm whose properties also include the Hiram Sibley Building, other area commercial properties and residential rental properties, as well as mobile home parks in Macedon, Corning and Central Square, a village in Oswego County.

Samuel Pontillo, one of three sons of the Batavia pizzeria's co-founder, Salvatore Pontillo, had been linked with the new Batavia Pontillo's, but the exact nature of his connection to the restaurant was not clear.

Samuel Pontillo is not an owner of the new Batavia Pontillo's, which is owned by Batavia Pizza LLC, a group whose members include Masachi and other partners, claims a lawsuit filed Aug. 26 in U.S. District Court in Rochester by Pontillo Family Pizza Inc.

Pontillo Family Pizza is headed by Anthony Pontillo of East Rochester, a registration filed with the state shows.

Masachi and two partners-Jeffrey Reddish, also a Rochester real estate investor, and Jason Teller of South Carolina-are sole owners of Batavia Pizza LLC, attorney Stephen Salai of Harter, Secrest & Emery LLP said in an interview last week. Salai represents Pontillo Family Pizza.

Masachi and Reddish did not return calls for comment this week.

An employee who answered the telephone at the new Batavia Pontillo's said no owners were present and he was not sure of the pizzeria's ownership. Samuel Pontillo worked at the Batavia eatery but was not there, the employee said. Samuel Pontillo did not return the call.

A copy of a 1982 U.S. Patent and Trademark Office registration of the Pontillo's name, securing it as a trademark of Pontillo Family Pizza Inc. for the sale of "pizza and sandwiches for consumption on and off the premises," is filed with Pontillo Family Pizza's court complaint. Anthony Pontillo is the registrant. Pontillo Family Pizza holds the mark.

Samuel Pontillo might be an employee of the current Batavia pizzeria but has no ownership interest in the restaurant, Salai said. Even if he were an owner, Samuel Pontillo would not have the right to put his family name on a pizza place, Salai maintained.

The trademark is controlled by Anthony Pontillo's son David, the attorney said. He maintained that the Pontillo family members involved in the Batavia pizzeria surrendered any claim to the name when they closed the Batavia restaurant.

The Monroe County branch of the Pontillo family hopes to resolve the trademark flap with an out-of-court settlement, Salai said. Pontillo Family Pizza members would not comment publicly on the dispute, he added.

Writing in June to Neal Slifkin, a Harris Beach PLLC partner who then represented Batavia Pizza LLC in the trademark dispute, Salai stated that Pontillo Family Pizza had "from time to time" licensed the Pontillo name to some family members who ran pizzerias, but "no (Pontillo) family member has asked for permission to use the Pontillo's name in Batavia."

As an officer of Pontillo's Batavia Pizzeria Inc., Samuel Pontillo helped run the former Batavia Pontillo's, Salai stated in the letter.

Pontillo's Batavia Pizzeria Inc. is a corporation registered with the state in 1990 and located at 500 E. Main St. in Batavia. The 1990 filing identifies Samuel Pontillo as chairman or CEO of Pontillo's Batavia Pizzeria.

"We understand that Pontillo's Batavia Pizzeria Inc. had tax and other problems that forced it to close and that those same problems prevent Mr. Sam C. Pontillo from obtaining a liquor license and reopening the restaurant," the attorney wrote. "Because of his tax problems, Pontillo Family Pizza Inc. will not give Mr. Sam Pontillo the right to use the Pontillo's name for a pizzeria."

Pontillo Family Pizza would be open to settling the dispute amicably if Batavia Pizza would stop using the Pontillo's name within five days, Salai stated in the June 10 letter.

Contacted this week, Slifkin said that a conflict had forced him to withdraw as Batavia Pizza LLC's lawyer in the trademark dispute and he was unsure where the partners stood with the name flap now. He had recommended several replacements to Reddish but did not know whether the LLC had hired another attorney, Slifkin said.

Several weeks before filing the Aug. 26 court complaint, Salai wrote to Sam Feldman of Silver & Feldman Attorneys at Law in Henrietta, the lawyer whose name appears as agent for Batavia Pizza LLC in its Department of State corporate filing.

After repeating assertions that Batavia Pizza LLC lacked any right to use the Pontillo's name for a pizzeria and that Samuel Pontillo also lacked that right, Salai gave the Batavia Pizza an Aug. 20 deadline to respond.

Feldman had served only as the Batavia Pizza LLC group's attorney in the corporate registration, had had no contact with any members since and could not say who members of the LLC might be, he said this week.

Batavia Pizza LLC had been served with the complaint, but no one had contacted him to acknowledge its receipt, Salai said last week.

"I'm not sure if they have legal representation," he said. "But we'd still like to resolve this amicably."

9/10/10 (c) 2010 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or e-mail service@rbj.net.

 


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