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Slippery Rock, Indiana County restaurateurs in sandwich shop standoff

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By Thomas Olson
Saturday, Feb. 16, 2013, 6:59 p.m.
 

A Slippery Rock restaurateur is finding out the hard way how difficult it is to protect a businesses name and reputation from enterprising competitors.

Cindy Marlowe has operated Bob's Sub & Sandwich Shop in the northwest Pennsylvania college town since the 1970s. Serving a steady stream of Slippery Rock University students over the years, the shop's tag line is, “a college town favorite.”

But submarine warfare broke out in 2011, when businessman Mark Fleck opened a Bob's Sub in Indiana County.

The shop copied the “college town favorite” tag line to appeal to Indiana University of Pennsylvania students, and Fleck took a photo of Marlowe's original Bob's sub and hung it on the Indiana shop's wall, claiming the legacy, “since 1973.”

“I have nothing to do with Fleck,” said Marlowe, who sued him in Indiana County court in 2011 but failed to stop his shop from opening as another Bob's.

In October, Fleck opened a second Bob's Sub in downtown Pittsburgh, a couple blocks from Point Park University. It is run by Fleck's son, Patrick. That shop, too, uses the same name, tag lines and photo of Marlowe's shop.

“Our fear is he'll keep opening shops with our picture in it. And that's our beef, that he's trying to take my reputation. He has no right to that,” Marlowe said.

“Over the years, we've served millions of people, and that's what he's trying to use because the hardest part about opening a restaurant is getting people in the door,” she said.

Fleck said he's done nothing wrong and does intend to expand. He plans to open a third Bob's Sub as early as this spring in Kensington.

“We're going to try to expand rather quickly,” said Fleck, who tried to purchase Marlowe's shop in 2010, when she rebuffed him.

“If she wants to take this back to court, let her,” Fleck said.

Naming fights among businesses are nothing new for Pittsburgh or elsewhere.

For example, one of the most enduring, well-known restaurants in the North Side, Max's Allegheny Tavern, used to go by a different name.

The old Max & Erma's Allegheny Tavern ran afoul of the Max & Erma's casual-dining chain, which forced the local German restaurant to drop “Erma's” in 1979.

Citizens National Bank of Evans City was doing business for more than 120 years before Citizens Bank entered Western Pennsylvania in 2001. That's when Rhode Island-based RBS Citizens Financial Group acquired Mellon Bank's branches, then sued the local Citizens to give up the name.

After a four-year court battle, the local bank changed its name to NexTier Bank.

“Posting those photos in a copycat restaurant is not too smart, and (Marlowe) may have a case of identify theft of the concept,” said Ron Sofranko, head of Sofranko Advisory Group LLC in Wexford, a restaurant consultant and sales broker.

“But if nobody ever really had the trademark rights, then there's no case for infringement,” Sofranko said.

Fleck's actions amount to “flagrant theft,” and he “has no right to use an image of (Marlowe's) shop whatsoever,” said attorney Len Sweeney, who represented Marlowe in her unsuccessful 2011 case against Fleck. “But it's difficult and expensive to obtain damages in these cases.”

The Bob in “Bob's Sub” is Bob Woolston, long retired and living in Florida. He founded the first shop in western New York about 1970, then expanded into college towns in Western Pennsylvania. The Slippery Rock shop's 1973 opening was followed by locations in Edinboro, Bloomsburg and Clarion.

Long before retiring in 2001, Woolston sold the Slippery Rock shop to Marlowe, a long-time employee. He sold the Clarion shop to businessman Ron Eustice, who went on to open a Bob's Sub in Brookville.

“Bob gave them permission to use the name in Slippery Rock and in Clarion,” said Carol Woolston, who was active in the business and spoke for Bob, who is in bad health. “But he never sold the trademark or the name to anybody.”

Fleck claims he acquired the right to use the “Bob's Sub” name on the shops he opened in Indiana and Downtown “because of its history and recognition in the market.” He declined to discuss details, including from whom he bought the rights.

Eustice said he rejected Fleck's attempt to buy his Clarion store a couple years ago. But he said he agreed to train and supply the Flecks “for X amount of money” so they could open a Bob's Sub shop in Indiana.

“If he came and opened a shop next to mine, I'd sue him,” Eustice said. “But Mark and I get along just fine.”

Marlowe's nephew, Joe Wigton, who manages her shop in Slippery Rock, estimates the restaurant has sold about 5 million sandwiches to about 250,000 customers during its 40 years.

“Fleck was after our name and reputation,” Wigton said. “But the phrase, ‘Bob's Sub,” isn't easy to back up. Legally, we don't seem to have any ground to stand on.”

Thomas Olson is a staff writer for Trib Total Media. He can be reached a 412-320-7854 or at tolson@tribweb.com.

 

 
 


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