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The owners of two Ohio pizza joints are fighting over who owns the right to the phrase, “Buy one, get one free.” The Lorain County Common Pleas Court is set to decide who’s right in this battle over state trademark rights to similar-sounding slogans. It became an issue last year after Fred Peters’ The Original Pizza Pan Inc. put a store across the street from Joe Monteleone Jr.’s Master Pizza in Elyria, Ohio. Master Pizza is a neighborhood shop that’s older than its owner and has been on the same street since 1955. Peters’ chain is based in Seven Hills, a Cleveland suburb, and has 83 locations in five states. Monteleone is suing, asking the court to allow Master Pizza to continue advertising the way he said it has for years. No hearings have been scheduled. The lawsuit came after letters from Peters’ attorney that asked Master Pizza to stop using the phrases. Monteleone told The (Elyria) Chronicle-Telegram when he sued in August that he felt like a big chain was trying to run him out of business. “I’m not going to be pushed around,” Monteleone said. “I’ve worked really hard and no big guy is going to come in and tell me I can’t compete.” Peters said he just wants Master Pizza to stop using the words he claims he trademarked two or three years ago. “I don’t want to hurt these small mom-and-pops. To grow this chain, we need to protect this chain,” he said. “It’d be the same as copying the Big Mac,” Peters said. “We’re going to fight it.” Monteleone, who joined the family run business 27 years ago at age 13, said he bought the store in 1990. He’s offered two-for-one and three-for-one specials long before Pizza Pan moved to town, he said. A yellow sign at the shop reads: “Buy 1 Pizza, Get 2 Pizzas Free, Pick Up Only. Buy 1 Pizza, Get 1 Pizza Free, Delivery” and a banner above the door proclaims it “Elyria’s Home of the Free Pizza.” After Pizza Pan sent the letters, Monteleone trademarked his own phrases. He specified that Master Pizza was “Elyria’s home of the free pizza.” And where Pizza Pan spells out the numbers “one” and “two,” Master Pizza uses numerals. The (Cleveland) Plain Dealer reported Wednesday that Peters’ lawyer, Joe Gibbons, could provide documentation of only one trademark filing in January 2003 for “Home of the Extra Free Pizza.” The trademark expires in 2008. The state does have trademarks on file for each of the three phrases Monteleone said he registered shortly after receiving the first cease-and-desist letter from Pizza Pan. “We’re not trying to exclude Pizza Pan from using those phrases,” said Paul Blevins, Monteleone’s attorney. “We just think that we should able to use them, too. They are commonly used phrases.” Gibbons argues that Pizza Pan has accrued common-law trademark rights to the phrases. But Steven Auvil, a partner at Cleveland’s Benesch Friedlander Coplan & Arnoff law firm who specializes in copyright and trademark cases, said common-law rights could be interpreted as territorial. That means they may not apply each time Pizza Pan opens in a new market. Auvil also said the court might be skeptical of awarding exclusivity over a phrase that’s so commonly used in the retail industry. Copyright 2005 Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.

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