It's the David and Goliath pizza trademark battle of the year

By Mike Pomranz
June 25, 2018
Photo by Bloomberg via Getty Images

Apparently, Domino’s hasn’t heard of the Streisand effect. America’s top-selling pizza brand with over 5,000 locations nationwide has reportedly decided to take on Toppers, a pizza chain with 86 locations across 15 states, in a legal fight over a proposed advertising campaign that Domino’s claims inappropriately uses their logo. However, it’s beginning to seem like Domino’s effort to suppress the ads might be giving their message more publicity than if Toppers had just run them as planned.

The beef between the two pizza chains is an upcoming Toppers campaign called “Us. vs. Them.” The ad’s imagery features “Them” on the left—a Domino’s delivery trunk, logo and all, shipping “Dough fresh off the semi”—and “Us” on the right—a Toppers employee carrying a big sack of flour captioned, “Dough made fresh in-house daily.” Along the bottom, the ad reads, “Not making dough in-house? What. The. Truck.”

The campaign takes a jab at Domino’s for delivering premade dough to their restaurants from a central warehouse instead of making it fresh in store. However, a report suggests that this claim alone isn’t why Domino’s is looking to take legal action against Toppers. Instead, the pizza giant objects to the use of their logo. “It has recently been brought to our attention that your company's marketing strategies include advertisement that defames our brand and incorporates our registered trademark,” Dawn Bushart, a member of Domino's legal department, wrote in the letter, according to CNBC. “The use of the Domino's logo in this fashion is damaging to our brand, unlawful, and an infringement of our federally registered trademark,” the letter continues.

Despite the letter, Toppers' Founder and CEO Scott Gittrich said he plans to move forward with the campaign, which is slated to launch next month. And by riling Domino’s up to the point where this story has gotten media attention, it appears in some ways, he’s already achieved the results he was looking for. “We don't have the hundreds of millions of dollars that our competitors do to rain down TV commercials ten times during every football game,” he was quoted as saying. “We have to make our marketing work a little bit harder. We have to say it more directly.”

For the record, CNBC spoke to a lawyer, Domenic Romano of Romano Law, who did point out a potential flaw with the Toppers’ ad: It doesn’t use a “TM” or “R” symbol next to the Domino’s logo. But though that’s a relatively small issue, he says the larger defamation claim may be unfounded. “It's not defamation if it's true,” he said. As a result, he concluded, “Both sides are wrong here.”

Meanwhile, Gittrich apparently knows a thing or two about Domino’s beyond how to get under the brand’s skin. He reportedly worked for the chain for eight years before starting Toppers. Sounds like maybe Domino’s should have started this legal fight years ago by making him sign a stricter non-compete agreement.