ALBANY, N.Y. (CN) - A woman who owns a Betty Boop-themed diner says in court that her soon-to-be ex-husband is confusing her clients by trying to open a similar business.
Teresa Marino and her company, Gangi-Yoyo Inc., opened Betty Boop's Diner in late 2012, according to the complaint in Albany County Supreme Court. In addition to "photographs and items referencing "Betty Boop," the Albany diner allegedly boasts "Oop a Doop Appetizers" and other kitschy offerings.
Teresa says she is in the process of divorcing her husband, Joseph Marino, "a known drug user and bad character" who "has been in and out of county jail for violation of court orders."
Now, about a mile and a half away from her restaurant, Joseph and his newly incorporated Betty Boop's Diner Inc. are trying to open the confusingly similar "Betty Boop's Oop A Doop Diner," according to the complaint filed Feb. 11.
Teresa says Joseph has had the occasion to enter and eat at her diner during the course of their marriage.
"The defendant has knowledge that the terms 'Oop a Doop' and 'Betty Boop' are strongly affiliated with the plaintiff's diner and that the public associates those terms with the plaintiff's diner," the complaint states.
Because Joseph's new business is a diner like hers, so close to hers, with a name an awful lot like hers, "it can only be concluded that the defendant did this with the intent to inform the public that the two diners are somehow affiliated with each other, which is not true," Teresa says (emphasis in original).
"Furthermore, upon information and belief, the defendant has told known patrons of the plaintiff's diner that the diner 'is moving to 75 Central Avenue,'" the complaint continues. "If nothing else, this shows the defendant's intent to deceive and mislead the public into thinking his diner will not only be affiliated with, but will be replacing, the plaintiff's diner."
Customers are allegedly confused already, and the competing diner has not even opened, Teresa says.
"Several customers have come into the diner questioning the plaintiff's affiliation with the defendant's upcoming diner," the complaint states. "The plaintiff has been asked numerous times if the diner is moving locations and/or opening in another location."
Joseph's restaurant would also sully Teresa's reputation, she says, noting that "the defendant has an extremely bad reputation in the Albany community."
The success of the existing Betty Boop Diner "can most likely be attributable to the work that plaintiff has put in to show her good character and nature with the general public and the community," Teresa says. "The plaintiff has worked hard to obtain a good reputation.
"Unlike the plaintiff, however, the defendant has an extremely bad reputation in the Albany community. Upon information and belief, he is a known drug abuser and user in the community, and has been in and out of county jail for violation of court orders."
If Joseph's diner opens, and the public becomes confused as which diner is whose, "there is a likelihood that patrons will stop dining at the plaintiff's diner because they believe the diner is associated with a known drug user and bad character," according to the complaint.
Teresa Marino seeks an injunction barring her husband from using the name "Betty Boop" and/or "Oop a Doop" for a diner anywhere within a 50-mile radius of her restaurant. Joseph should also destroy or relabel all infringing products, and face an accounting of all damages Teresa has suffered and profits he has made, according to the complaint. Alexandra Nitt of Slingerlands, N.Y., represents the plaintiff.
Courthouse News Service records show that Hearst has filed at least 16 lawsuits over the rights to Betty Boop. In 2011, the 9th Circuit ruled that the family of Betty Boop's creator, Max Fleischer, does not own a copyright or trademark on the Boop image.
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