20210915-LOC-PhoKeene

Pho Keene Great, a Vietnamese restaurant in downtown Keene, is pictured in August.

A former owner of Pho Keene Great cannot use that name for the time being in branding materials for a French-Vietnamese food truck she plans to open in the area, a Cheshire County Superior Court judge has ruled.

In an order last Friday, Judge Elizabeth Leonard temporarily barred Harrisville resident Isabelle Jolie, who helped open the Keene restaurant in March 2019, from using the “Pho Keene Great” moniker while a trademark-infringement lawsuit against her is ongoing.

Pho Keene Great owners Malaise Lindenfeld and Beau Gillespie sued Jolie in July for using the eatery’s edgy name — pho, a Vietnamese soup, is pronounced “fuh” — in a tagline for her new truck, Gourmet Vietnam. Jolie has recently promoted the truck on a Facebook page titled Beyond Pho Keene Great by Euphoria, which previously did marketing for the Central Square restaurant. She left the restaurant shortly after it opened.

Lindenfeld and Gillespie, both of Nelson, say in the lawsuit that by attaching their restaurant’s name to her new business, Jolie is likely to imply a relationship between the separate entities and hurt Pho Keene Great financially.

“Not only did her repeated use create confusion regarding whether the original locations in Keene still remained open and viable, but her competing use also created confusion and uncertainty as to who or what business entity was backing these various subsequent businesses,” they claim, saying a customer had mistaken their menu for one from Jolie’s new food truck.

Leonard sided with those claims in her preliminary ruling, concluding that the Pho Keene Great owners had “shown clear confusion among the public” over the separate businesses.

“The longer this confusion exists, the more severe the confusion and consequences to the Plaintiffs,” she wrote. “This confusion is enough to show immediate and irreparable harm.”

Jolie, who is representing herself in the case, said Tuesday she hadn’t been aware of Leonard’s ruling. Noting that Bon Vivant, a now-defunct Vietnamese food stand on Route 101 that Jolie owned, used the phrase “Pho Keene Good” in a 2016 Facebook post, she argued that Lindenfeld brought any confusion on herself through the partners’ decision to name the restaurant similarly and by keeping that name after Jolie left.

“If she was that concerned about confusion, she could have changed it to anything else that she wanted to,” Jolie said. “She had that prerogative. But she decided to use the same thing I was using since 2016.”

Lindenfeld, a prominent entrepreneur who previously owned Audrey’s Cafe in Dublin and Piedra Fina in Marlborough, both of which closed last year, did not respond to phone and email inquiries Tuesday. Gillespie could not be reached at phone numbers listed online under his name.

In addition to prohibiting Jolie from using the “Pho Keene Great” name, the lawsuit seeks to recover “substantial” financial damage that Lindenfeld and Gillespie say they’ve suffered due to her alleged trademark infringement.

Since leaving Pho Keene Great, Jolie has used the restaurant’s name in business ventures including the new truck and Pho Keene Great Redux, a Facebook page aiming to raise funds for a French-Vietnamese café, according to their complaint.

Bon Vivant, Jolie’s old food stand, announced the creation of Pho Keene Great, a joint effort by Jolie and the restaurant’s current owners, in February 2018.

Pho Keene Great LLC, which Lindenfeld founded in March 2018, applied for trademarks on “Pho Keene Great” and “Hanoi Bar Pho Keene Great” with the U.S. Patent and Trademark Office in January 2019, according to USPTO records. Those marks were approved last December.

In court filings, Jolie has called the allegations against her “patently untrue” and objected to Pho Keene Great’s trademarks under a federal doctrine known as “prior rights,” which gives priority ownership of a commercial phrase to whoever used it first. She also tried previously to keep Lindenfeld and Gillespie from using the phrase, asking in a May 2019 cease-and-desist letter that they stop using it at the restaurant and calling herself the “rightful owner” of their two federal trademarks.

“You agreed to fund the registration of these marks; but, that does not mean you own it,” she wrote at the time. “The trademark was in full use under the name, ‘Pho Keene Good,’ in 2016 until present date by me. I am the sole owner of this mark.”

In her ruling Friday, however, Leonard found that Lindenfeld and Gillespie are “likely to succeed on the merits” of their trademark-infringement claims.

While not issuing a final ruling, she said Jolie had failed to prove that her earlier use of the phrase “Pho Keene Good” gives her prior rights to the restaurant name. Leonard suggested instead that Jolie ask the USPTO to revoke the existing trademarks — which she has done — before using that language in her own ventures.

Jolie said Tuesday she plans to contest the preliminary ruling.

Caleb Symons can be reached at 352-1234, extension 1420, or csymons@keenesentinel.com. Follow him on Twitter @CalebSymonsKS.