Toppers Pizza Faces Potential Lawsuit After Ad Calls Out Domino's Dough

Did you ever wonder what happened to that kid from middle school who’d raise his hand and remind the teacher that she’d forgotten to assign homework? Apparently he’s in Duluth, Minnesota, snitching on a pizza franchise for calling out Domino’s pre-fab dough.

According to CNBC, during a store opening in Duluth, Toppers Pizza revealed its newest marketing campaign, which it calls “Us vs. Them.” In the ad, a Domino’s Pizza truck is shown delivering dough to one of its stores, while a Toppers employee is illustrated with a giant bag of flour thrown over his shoulder. “THEM: Dough Fresh Off the Semi vs. US: Dough Made Fresh In-House Daily” it says.

So yeah, some customer who visited Toppers was apparently so upset by the flyer that he snapped a photo of it and sent it directly to Domino’s. (WHO EVEN DOES THIS?) A few days later, Toppers received a cease and desist letter sent by Domino’s intellectual property attorneys threatening “further legal action” if Toppers doesn’t stop using those marketing materials immediately.

“It has recently been brought to our attention that your company's marketing strategies include advertisement that defames our brand and incorporates our registered trademark,” Dawn Bushart, a member of Domino’s legal department, wrote. “The use of the Domino's logo in this fashion is damaging to our brand, unlawful, and an infringement of our federally registered trademark.”

To its credit, Toppers is more or less telling Domino’s to get stuffed. “Excuse me for telling the truth!” Toppers founder and CEO Scott Gittrich wrote in a blog post titled “Now I’m Really Pissed.” He said that he believes that his company’s ad is both “legal and fair” because Domino’s does have its dough delivered from a factory. (Toppers is currently using the ad as its Twitter header graphic, so it’s not at all backing down from this).

“Domino’s is threatening us to shut up or they will ‘be forced to take further legal action,’” Gittrich wrote. “Apparently they think we shouldn’t be able to tell people about the REAL things that we do differently. This is America! Tell the truth and let the people decide. If they don’t like us saying that they make their dough in factories and we make ours in our restaurant kitchens, then they should change the way they do it!”

Gittrich may have a point. Attorney Domenic Romano told CNBC that Domino’s couldn’t claim that Toppers was defaming its brand if what it said about that dough was true. What Toppers got wrong was failing to include “proper trademark attribution” in its ad, neglecting to mark the Domino’s logos with a “™” or circled “R” to illustrate that those logos were the property of the other pizza maker.

That’s something that Gittrich is totally aware of: he worked for Domino’s for eight years, including a stint as a delivery driver when he was in college. He worked his way up to a role as the director of operations for a 22-store franchise in Charlotte, North Carolina. In a 2010 interview with the Wisconsin State Journal, he said that he almost became a Domino’s franchisee himself, before ultimately deciding to open his own pizza joint. Toppers now has 86 restaurants in 15 states—compared to Domino’s 5,600 locations.

“So what to do about this threat from Domino’s,” Gittrich wrote. “I’d rather we keep our focus on pizza and providing quality to our customers, but if I can’t stand up for how we do it, no one can. Of course we have our own attorneys too.”

It’s too bad he can’t countersue that snitch—or at least make sure that he eats factory-made pizza dough until forever.