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784 8th Street Corp. v. Ruggiero

United States District Court, E.D. New York

February 28, 2018

784 8TH STREET CORP. doing business as Zan's Kosher Delicatessen & Restaurant, PASQUALE RUGGIERO, Plaintiff(s),
v.
DENISE RUGGIERO, Defendant(s).

          Bracken Margolin Besunder LLP Attorneys for the Plaintiffs By: John P. Bracken, Esq., Alison Jaye Arden Besunder, Esq., Harvey Bruce Besunder, Esq., David M. Sobotkin, Esq., Zachary David Dubey, Esq., Of Counsel

          Denise Ruggiero Pro Se Defendant

          ADOPTION ORDER

          ARTHUR D. SPATT United States District Judge.

         The Plaintiffs 784 8th Street Corp. and Pasquale Ruggiero (the “Plaintiffs”) commenced this action against the Defendant Denise Ruggiero (the “Defendant”) alleging infringement of their registered and unregistered trademarks and copyrights.

         Presently before the Court are the Defendant's objections to Magistrate Judge Gary R. Brown's January 10, 2018 Report and Recommendation (the “R&R”). Judge Brown recommended that the Court: grant the Plaintiffs' motion for summary judgment on their first and second causes of action; deny the Defendant's motion for summary judgment; and dismiss the Defendant's counterclaims.

         For the following reasons, the R&R is adopted in its entirety.

         I. BACKGROUND

         A. The Relevant Facts

         The following facts were found by Magistrate Judge Brown. The Court will only discuss those facts to which the Defendant did not object.

         This action arises out of a long lasting controversy between the parties over the rights to the name and logo of Zan's Kosher Delicatessen and Restaurant (“Zan's”). Zan's is a full-service kosher delicatessen restaurant and catering service. Pasquale Ruggiero, who is the Defendant's uncle, and Anthony Ruggiero, the Defendant's father, established Zan's in 2004. The brothers were equal partners in the business.

         Prior to 2004, Pasquale Ruggiero owned Ben's Kosher Deli (“Ben's”). As a result of litigation between the partners of Ben's, Pasquale and Anthony Ruggiero (the “Ruggiero brothers”) changed the name of Ben's to Zan's. Once they changed the name, the Ruggiero brothers used the same advertising and marketing materials that Ben's had used for many years. They slightly altered the font, color, and underlining of the Ben's logo, and added caricatures of the Ruggiero brothers to the Zan's logo. They uploaded the Zan's materials to a website, www.zansdeli.com.

         The Defendant, along with other family members, played a part in helping to create the logo and materials. The focus of the R&R, as well as the Defendant's objections, is whether the Defendant was employed by the Plaintiffs when she helped to create the logo and materials.

         B. The Relevant Procedural History

         On October 18, 2013, the Plaintiffs filed their complaint. The complaint alleges claims for false copyright filing under 15 U.S.C. § 506(e); common law trademark infringement; false designation of origin under the Lanham Act, 15 U.S.C. § 1125(a); common law unfair competition; defamation; and tortious interference with business relations. The Plaintiffs seek damages; a declaratory judgment stating that the Plaintiffs have the sole rights to the ...


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