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Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
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before the opinion is printed in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS

SPECIAL TERM, 2010

2090472


Michael Keith Pinzone

v.

Papa's Wings, Inc.


Appeal from Baldwin Circuit Court
(CV-09-900015)

THOMAS, Judge.

Michael Keith Pinzone appeals from the judgment of the

Baldwin Circuit Court enjoining him from operating pizza

restaurants using the Papa's Pizza name and logo within the

corporate limits of Fairhope and declaring that Papa's Wings,

Inc., owns the exclusive rights to use that name and logo
within the corporate limits of Fairhope.
Facts and Procedural History

In 1993, Pinzone opened a pizza restaurant in Fairhope
("the Fairhope business") under the name Papa's Pizza.
Pinzone also entered into franchise agreements with other
individuals to operate Pappa's Pizza restaurants in other
cities.  In 1997, Pinzone, in his individual capacity,
registered with the state a logo that he used in association
with his business as a service mark; in 2002, Pinzone
registered the name Papa's Pizza.  Pinzone divorced Donna
Brill in 1997, and, as part of the settlement agreement
entered into between Pinzone and Brill and incorporated into
the judgment divorcing Pinzone and Brill, Pinzone agreed to
transfer his interest in the Fairhope business to Brill in
lieu of paying child support.  The settlement agreement
stated, in part, that

"the business heretofore owned by [Pinzone] known as
Papa's Pizza-Fairhope, Inc., located at 300 Village
Square, Fairhope, Alabama 36532, is awarded to
[Brill].  Within thirty (30) days from the date of
the decree of divorce, [Pinzone] shall take all
necessary and proper measures to divest himself of
any interest whatsoever in the above mentioned
corporation and to vest [Brill] as the sole owner of

said business.  If, at any time within twelve (12)
months immediately following the date of the decree
of divorce, [Brill] decides to sell the business,
she shall give [Pinzone] the first right of
refusal."

Brill operated the Fairhope business for over one year,
and then, in 1998, she sold it to Dennis Nicholson, one of the
owners of Papa's Wings, Inc.  The contract between Brill and
Nicholson stated that Brill had sold to Nicholson "Papa's
Pizza located at 300 Village Sq. Fairhope Al. with the right
to use the name Papa's Pizza and logo in Fairhope only.  This
restaurant name and logo and all its interest were given to
[Brill] in lieu of child support at [the time of Brill's
divorce from Pinzone]."  The contract further stated that
Brill was not "selling any other rights to [the] name and logo
given to [Brill] by her divorce." Nicholson subsequently
transferred ownership of the Fairhope business to Papa's
Wings, Inc., a corporation owned by Nicholson and other
members of his family.  At the time Nicholson purchased the
Fairhope business from Brill, he was operating, as part owner
of other corporations, two other Pappa's Pizza locations

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