UPDATE: Duke’s owner Reece Powers III said Wednesday night that the restaurant at 630 E. Dixie Drive in West Carrollton will reopen at 4 p.m. Thursday, June 25.
A federal judge ruled today, June 24, that Duke’s restaurant in West Carrollton can reopen — if and only if it serves strictly the menu of Duke’s Golden Ox Steak House, which closed in 2004.
The menu restrictions are part of a preliminary injunction granted by U.S. District Court Judge Thomas M. Rose in the trademark-infringement lawsuit filed by the former owner of Dominic’s Restaurant, Anne B. Mantia, against the owner of Duke’s restaurant, Reece Powers III. Powers is the nephew of Ray “Duke” Morris, who operated Duke’s Golden Ox Steakhouse from 1970 until it closed in 2004.
Rose had already ruled that Powers had violated the terms of a temporary restraining order when he opened Duke’s on May 1 because Powers and other defendants in the case had improperly capitalized on the Dominic’s name. The judge ordered the restaurant to close May 14. An attorney for Anne Mantia argued Monday that Duke’s should be allowed to reopen only if it changed its menu theme from an Italian restaurant to a steakhouse or Mexican restaurant. Attorneys for Powers had argued for no menu restrictions.
In forcing the former Duke’s Golden Ox menu — which became a part of the case when Duke Morris hand-wrote it into an affidavit he filed in support of his nephew — onto the new Duke’s, Rose seemed to be splitting the difference, since the Golden Ox menu contains many Italian dishes such as spaghetti, manicotti, and lasagna in addition to steaks and chops.
It was a remedy that neither side requested, but Rose said in his ruling that he was following the law in restricting Duke’s Restaurant to serving the menu of its now-defunct namesake restaurant.
“Should the Parties agree to a different menu, they may submit it to the court for approval,” Rose wrote.
Powers said late Wednesday that he welcomed the judge’s decision and intends to reopen Duke’s at 4 p.m. today, June 25. “We have a lot of employees and customers who are supportive of us,” he said.
Powers’ attorneys had submitted the Duke’s Golden Ox menu into the court record as part of an affidavit signed by his uncle and former Golden Ox owner Ray “Duke” Morris, who operated Duke’s from 1970 to 2004 virtually next door to Dominic’s on South Main Street in Dayton. Dominic’s closed in 2007.
Duke’s was open from May 1 to May 15 at 630 E. Dixie Drive in West Carrollton before it shut down by order of the judge.
The menu of the new Duke’s restaurant was the subject of heated debate during the hearing Monday, June 22 in Rose’s courtroom. An attorney for Anne Mantia argued that Duke’s should be allowed to reopen only if it changed its menu theme from an Italian restaurant to a steakhouse or Mexican restaurant. Attorneys for Powers had argued for no menu restrictions.
Rose ruled that a preliminary injunction — and its menu restriction — is warranted because the actions of Powers and other defendants created confusion over the restaurant’s connection to Dominic’s. Powers established a corporation last year and named it “Dominic’s Restaurant Inc.” that was later dissolved after the lawsuit was filed. Powers’ co-defendant Christie Mantia — the granddaughter of Dominic’s restaurant founder Dominic Mantia and the stepdaughter of Anne B. Mantia — told the Dayton Daily News in a March 17 interview that the new restaurant would be serving a menu similar to Dominic’s prepared by former Dominic’s chef Harry Lee, who is also named as a defendant in the lawsuit.
Rose concluded it would be wrong for Duke’s to be allowed to reopen without menu restrictions after it had improperly infringed on Dominic’s service marks during the two weeks it was open, and would likely continue to benefit from its improper aligning with the Dominic’s name after reopening. But instead of trying to prohibit Duke’s from serving Italian dishes altogether, Rose mandated the Golden Ox menu, which became part of the court record in part because Powers said it was Duke’s, not Dominic’s, that his new restaurant was patterned after.
So far, the case has revolved around restraining orders and injunctions regarding Duke’s, while the requests by Anne B. Mantia for monetary damages for what she says are trademark infringement and breach-of-contract remain unresolved.Tweet