A Toppers Pizza ad features a Domino’s truck, and Domino’s threatens to sue

Toppers’ founder and CEO Scott Gittrich said he has no intention of scrapping the advertisement.

“We don’t have the hundreds of millions of dollars that our competitors do to rain down TV commercials 10 times during every football game,” Gittrich told CNBC. “We have to make our marketing work a little bit harder. We have to say it more directly.”

Toppers has 86 locations in 15 states compared with the more than 5,600 locations that Domino’s oversees nationwide.

“Our brand voice has always reflected my own voice, which is kind of cocky and straightforward and transparent, and we’ve always spoken like that to our customers and through our marketing,” Gittrich said.

Domino’s cease-and-desist letter may not hold up, according to Domenic Romano, founder and managing attorney of Romano Law in New York.

“It’s not defamation if it’s true,” he told CNBC.

Domino’s does not make its own dough in its restaurants; instead, it arrives fresh from a warehouse via truck, a former Domino’s employee confirmed.

When asked about the matter, a Domino’s spokeswoman told CNBC, “It is our company practice not to comment on legal matters.”

The Federal Trade Commission allows comparative advertising so long as the company using its competitor’s logo does not falsely claim it is affiliated with the other brand and uses the logo with the proper trademark attribution.

This is where Domino’s could gain legal advantage. Topper’s ad does not include a trademark attribution — a “TM” or an “R” in a circle — or acknowledgment that the logo belongs to Domino’s.

“Both sides are wrong here,” Romano said.

Gittrich is no stranger to Domino’s. He worked for the chain for eight years before starting Toppers in 1991. After working his way up from delivery driver to assisting a franchisee with more than 20 locations, he decided to start his own pizza company, he said.

“I love a fair fight in business,” he said. “I think who wins is the customer.”

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