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What are my chances to win the case of my ex employer against me for opening similar business? (no non-compete agreement signed)

New York, NY |

We used to work in a restaurant, me as a waiter and my friend as a Chef, for many years and now (for 8 months) we opened our own business in another state (20 miles away) and our previous employer is suing us. We have slightly the same name and the menu is most likely the same with some dishes extra and some not offered but it is the is the same kind of food. I am not part of the corporation. My friend the Chef is partner with my girlfriend and The previous owner sued them after the name and menu at first (he sued us based on a trademark application which, after, was denied to him) now he is taking my girlfriend out of the case and he is suing me and my friend the chef for opening "practically the same business and for affecting his business". What r our chances to win this case? Thanks

Attorney Answers 3


  1. Hi,

    I would want to understand all the facts and circumstances in more detail before offerng any insights. I think frankly anything I could say at this point would be assuming way too much.

    That said, you cannot protect a business idea but you can protect the trademark. If no non-compete was signed and frankly if brought to a NY court it would likely be thrown out anyway, you cannot be stopped from opening a competitive business. It is the trademark issue I am concerned of here and would need to know more.

    The good news is that most of us here, including myself, offer a free phone consult. So feel free to reach out to discuss in more detail.

    Best regards,
    Frank
    Natoli-Lapin, LLC
    New York, NY
    (see Disclaimer)

    The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 Support@LanternLegal.com DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.


  2. It depends on how similar the concepts are to each other.

    You would be well-served to discuss your dilemma with a New York intellectual property attorney in a confidential forum as soon as possible.


  3. It is impossible and unethical to predict whether you will win your case. Although you did not have a non-compete agreement, if the public is confused about the connection between your previous employer's restaurant and your new establishment, your former employer may have a valid case. As the two other attorneys mentioned, there are many facts and issues which would need to be explored to thoroughly understand and advise on your situation.

    Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.

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