Last week, Eli at the local restaurant news and business blog Tommorrow’s News Today broke a story revealing that Antico Holdings, LLC and Antico Foods, LLC had filed a lawsuit accusing members of the McDowell Family, owners of Fuoco di Napoli, of trademark infringement.

My review of Fuoco di Napoli ran yesterday on the Food & More blog, and appears in today’s issue of the AJC in the Go Guide section. Our reviews are sometimes written as far as two weeks in advance before publication, and obviously, much has come to light since my visits to the Neapolitan pizzeria in Buckhead.

The night of my deadline, I came across a reference to the suit, filed on 4/4/12. While we made the decision to leave the suit out of the review, it is still newsworthy, and something that we felt obligated to investigate and report on.

Since filing the review, I obtained copies of the initial complaint filed by Antico. I spoke with the owners of both restaurants, and can now shed more light on the details of the suit and the last few tumultuous months at Fuoco di Napoli.

The 23 page complaint filed by Antico includes numerous allegations against the owners of Fuoco di Napoli spread across six counts, mostly centered on trademark infringement and alleging that Fuoco di Napoli intentionally misled consumers to believe there was an affiliation between the restaurants.

Before getting into the nitty-gritty, I can’t resist mentioning that my article in our dining guide naming Antico as the “Best Italian Style Pizza” in Atlanta was submitted as Exhibit B and the AJC’s Bob Townsend’s First Look article on Fuoco is filed as Exhibit E. You know you have made it when you’re mentioned in other people’s lawsuits without knowing about it.

Here are some of the key points from the complaint:

• D.H. McDowell Family LLLP owned a 20% stake in Antico Holdings, during which time, they had “access to and knowledge of the Antico Trade Dress and Trade Secrets used in connection with the operation of Antico Pizza.” The McDowell Family sold their share of Antico Holdings on May 6, 2011, for which they received $240,000.
• “On or about July 2011, Dennis H. McDowell, Jackie McDowell, and Lori G. McDowell formed Fuoco.”
• “Dino McDowell, manager of Fuoco, previously worked for and was trained in the pizza industry by Di Palma at Antico Pizza”
• “Defendants have intentionally knocked-off Antico’s trade dress including the wood-burning oven, rustic communal wooden styled tables, the strategically placed wooden boxes and crates throughout the store containing ingredients and products imported from Italy used as decoration and extra eating space for customers, the open-styled kitchen for customers to view the pizza chef’s preparation of the pizzas for baking and the playing of similar music throughout the restaurant.”
• “In an effort to adopt and replicate Antico Pizza, Fuoco also hired one of Antico Pizza’s kitchen employees who had knowledge of and access to Antico Pizza’s concepts, recipes, pizza baking procedures and operations.”
• “Defendants have been misleading the public by informing customers and potential customers that both restaurants are owned by the same individuals and engaging in various marketing strategies designating Fuoco as an affiliate of Antico Pizza.”

I spoke with Giovanni Di Palma, owner of Antico, about the suit and he explained that the final allegation listed above was the real impetus for the lawsuit. Di Palma stated that “We had many patrons, friends and vendors inform us that we opened a new place in Buckhead, which was news to me.”

Di Palma alleges that when Fuoco first opened, the management intentionally misled consumers to believe that the two restaurants were officially affiliated. He claims to have over 50 depositions that back the allegation that the owners of Fuoco directly told consumers that the two restaurants were connected. Di Palma stated that the fact that Fuoco simply opened a similar style restaurant didn’t result in the suit, but that Fuoco intentionally used Antico’s name to drum up business, and in the process, confused and misled many customers.

“I personally have no fear of competition whatsoever,” Di Palma said, “I embrace competition and I think it is healthy for the marketplace, when it is done fairly.”

In a subsequent conversation with Di Palma, he also informed me that another sticking point in the suit, and one of the demands they will be making, is that Fuoco removes the Fuoco di Napoli pizza from their menu because he believes that it is a carbon copy of Antico’s Diavola pizza, Giovanni’s original creation.

When reached for comment on the suit, Fuoco partner Lori McDowell directed me to their attorney, Stephen Weizenecker of Lewis Brisbois Bisgaard & Smith LLP. I spoke with Weizenecker by phone, and he stated that “We intend to vigorously defend these claims and bring it to what we think with be the natural conclusion.” He continues, “It is obviously my client’s contention that their restaurant is completely different in concept, theme, design, and everything from Antico.”

Update on Enrico Liberato:

In addition to the troubles with Antico, Fuoco di Napoli recently lost their star pizzaiolo, Enrico Liberato. Days after rumors circulated that was no longer at Fuoco, Creative Loafing’s Brad Kaplan reported that a booking record from 3/3/12 showed that Liberato had been arrested, and his charges included aggravated assault, as well as an immigration charge. Rumors of his deportation quickly followed. While researching my review, the owners of Fuoco declined to comment on the specifics of Liberato’s departure, but confirmed that he was no longer with the restaurant.

During the course of the investigation of the allegations by Antico, I also obtained a copy of the police report for the night of Liberato’s arrest at Fuoco di Napoli. Though unrelated to the suit, we feel that this is also relevant for our readers.

The report shows that on the night of March 2, 2012 at 10:33 p.m., the police were dispatched to Fuoco di Napoli on a dispute call. Upon arrival, the owner alleged that, while in a dispute with another employee, Liberato pulled a knife from a drawer and “waived the knife in the air and began moving toward the victim. The victim then grabbed a 6 ft. long pizza peel in order to defend himself.” The report goes on to say that “while inventorying the suspects’ vehicle, [the officer] smelt the odor of marijuana”, and then found less than an ounce of marijuana in the center console.

At this time, the fate of Liberato is not entirely clear, though Weizenecker (who does not represent Liberato) stated that he is currently being held in a facility in Stewart, Ga. He also stated that his understanding of Liberato’s current situation is that it has more to do with improperly filed immigration paperwork than the charges stemming from the altercation on 3/2.

In one of our conversations, Giovanni Di Palma informed me that I was mistaken when I stated in my review of Fuoco that “It is obvious that Liberato passed on his recipes and techniques to the team running the kitchen now.” He clarified that the recipes at Antico are entirely his own, and that Liberato was never instructed in his recipes end-to-end.

“When I hire a skilled kitchen position at Antico, that person is only trained to master one position.” Di Palma continues, “In this case Enrico was solely a Fornaio (oven worker). He was terminated during our training period due to inconsistency as a Fornaio, not meeting the required level of quality standards at Antico.”

Given that this suit was only filed weeks ago, and that Antico has demanded a jury trial for this case, we won’t know the outcome for some time. The AJC Food & More blog plans to keep tabs on the progression of the suit, as well as Liberato’s status, and will update our readers are more information becomes available.

- Jon Watson, Food & More blog