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Duke’s: Home of the court-ordered menu

After a bruising food fight, dinner will finally be served.

Duke Morris submitted this hand-written document to show what items were on the original "Duke's Golden Ox Steak House" menu.

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Staff photo by Chris Stewart A judge said Duke’s Restaurant should remain closed unless the restaurant uses the Duke’s Golden Ox  steakhouse menu.

ENLARGE PHOTO

Judge allows new Duke's to reopen, but there's a catch

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By Mark Fisher, Staff Writer Updated 12:19 AM Thursday, June 25, 2009

DAYTON — It was a remedy that neither side requested, but U.S. District Judge Thomas M. Rose said in a ruling filed Wednesday, June 24, that he was following the law in restricting Duke’s Restaurant to serving the menu of its now-defunct namesake restaurant, Duke’s Golden Ox steakhouse.

Rose lifted his order that Duke’s must remain closed pending the outcome of the trademark-infringement lawsuit filed by Anne B. Mantia, the former owner of Dominic’s restaurant.

But he did grant Mantia a preliminary injunction barring Duke’s and its owner, Reece Powers III, from using any reference or connection to Dominic’s, and told Powers that Duke’s should remain closed unless the restaurant uses the Duke’s Golden Ox steakhouse menu.

“Should the Parties agree to a different menu, they may submit it to the court for approval,” Rose wrote.

Powers late Wednesday said 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 was 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.

In forcing the former Duke’s Golden Ox menu onto the new Duke’s, Rose seemed to split the difference, since the Golden Ox menu includes several Italian pasta specialties such as spaghetti and lasagna.

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 if it aligned 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.

The requests by Anne B. Mantia for monetary damages for what she says are trademark infringement and breach-of-contract remain unresolved.

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