My husband closed his restaurant of 5+ years last August. The landlords of the building where the restaurant was located for all 5+ years decided to open their own place. He sold them tables, chairs & kitchenwares in lieu of any past due rent. They then decided to use the same name and put up signs staing the restaurant would "re-open under new management", without his consent. They also hired his longest tenured employee to run the business for them, initially. They drew up papers on his last day of business, wanting him to sign over all rights to them for $10.00! He did not sign and was unable to afford an attorney, so he drew up his own papers and asked them to either change the name or compensate him & they have ignored him. They have now been open for several months and continue to use the name my husband built up to promote their business. Does he have a case for them not paying him for the "goodwill" he built up in that same location?
This is a good and somewhat difficult question. As a general matter, even assuming that the former restaurant name was capable of being protected under laws generally applicable to trademark, those rights do not endure after the name has been abandoned by, for example, permanently closing the business. An attorney who practices trademark litigation can assist you in determining whether abandonment is at issue and also whether the former name is capable of enjoying common-law trademark protection.
The facts you posit do not suggest that the landlord has engaged in any misconduct either by opening the restaurant there (anyone had the perfect right to do so), by hiring former employees (they were employed at will and were privileged to find new employment).
There is another problem with the "goodwill." Goodwill is an intangible asset that a business owner uses to make a profit, and the value of that goodwill will usually depend on the profitability of the business. It doesn't sound as if the closed business was profitable, so the value of stealing the goodwill may be low.
See an attorney to discuss the situation. The lease and other documents need to be reviewed.
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