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What’s in a name?


Two restaurants go to battle over which one is the real Custino’s.

Greg Horton November 21st, 2012

An Oklahoma County judge must decide if Oklahoma City is to be home to two Italian restaurants bearing the name Custino’s.

At odds are Bud and Barbara Elder, owners of Custino’s Italian Kitchen; and Angelo and Philip Custino, owners of Custino’s Restaurant and Bar.

In August, District Judge Lisa Davis rejected an injunction filed by the Custinos seeking to stop the Elders from using the Custino name for their restaurant. The four originally were partners in the start-up at 2724 W. Britton. In response, the Elders claimed that the Custino's had failed to show up on June 26, told employees not to show up for work, shut down utility accounts and withdrew money from the corporate checking account.

Both sides agree that the Elders were the eatery’s sole financers.

Bud Elder said he entered into the relationship in good faith, but after six weeks, the Custinos just walked away.

“The next time we heard from them was when we received notice we were being sued,” Elder said.

The restaurant was an attempt to resurrect the Custino’s Italian Kitchen of the 1990s, made famous locally by its “Stuffa You Face” jingle. The Custinos and Elders worked together on that concept until the Custinos left OKC; they returned last year.

Elder, who described Philip as his best friend during the 1990s, said the Custinos wanted to renew the friendship and business partnership.

Now that friendship is surely over, and both parties are adamant about using the Custino name.

On Nov. 9, Angelo Custino and his father, Philip, opened Custino’s Restaurant and Bar at 7801 N. May, around the corner from the other restaurant — a violation of Davis’ ruling, according to Bill Zuhdi, attorney for the Elders.

“The judge said neither party could harm the other in conducting business,” Zuhdi said. “It’s our contention that the proximity of the new location, combined with the confusion created by the use of the same name, will seriously harm the Elders’ business.”

The name Custino’s Italian Kitchen was reserved by Bud Elder several years ago and appropriate papers were filed with the Secretary of State, said Zuhdi.

The Elders also claim that Custino is not Philip Custino’s actual name. They said his legal name is Anthony Philip Caliendo, and that he was sentenced to federal prison in 1988 for his part in a prostitution ring.

Angelo Custino called the accusation a lie.

“My father was born Philip Angelo Custino,” he said. “I have the birth certificate. I’ll show it to anyone who asks. I don’t want the same thing happening to my father as happened to President Obama.”

Elder said he wouldn’t have an issue with the new restaurant if he thought it would serve OKC well.

“If I thought it might help the Custino’s brand, I could support it,” he said, “but personal knowledge and experience tells me it will be a disaster.”

 
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11.22.2012 at 03:10 Reply

My letter to the editor submitted a few days ago.

Dear Editor,

There were many misleading and false statements made in the article titled “What’s in a Name,” published Nov. 21, 2012. To begin I would like to clarify, as the Oklahoman did not report this correctly either, that my father, Phil Custino, was a consultant for Custino’s Italian Kitchen and not an owner or partner. My current business Custino’s Restaurant & Bar, located at 7801 N. May Ave., has the privilege of having my father as the executive chef.

As far as statements made I would like to address a few corrections. Charles Elder was quoted saying “but after six weeks, the Custino’s just walked away.” The reason for me separating myself from the Elder’s, not only because we have different views on ethics in business, began a few weeks after opening when $1,500 was transferred electronically out of the company bank account to Mr. Elder’s L.L.C. account (E-Genius Communications) without any notification. Our terms as partners being that when one takes money the other is entitled to the same amount, I confronted him and advised him since he had never participated in the restaurant industry before that taking money for the owners was something that needed to be discussed so as not to put the business in jeopardy. Considering we opened with $0.03 in the company account, that amount even excluding what I was entitled made it more difficult to keep the business running. Having online access to the company account the three of us were on, I continued to monitor the account for transfers to his L.L.C. Upon noticing the amount not reported to me was near five figures and my father and I had been working open to close for very little compensation I decided to seek legal counsel. When we did not show for work I immediately received a voicemail that the locks on the building had been changed.

Mr. Elder also made a statement that “the next time we heard from them was when we received notice we were being sued.” Although he had not heard directly from me after leaving multiple threatening text messages and voicemails that I have documentation of, he did receive notification on my behalf from my attorney that all future communications were to go through him. After ignoring the letter from my attorney, Mr. Elder continued to leave messages and began to drive by my residence at all hours of the day. He also received notification on my behalf from the Oklahoma City Police Department to stop all communications and to no longer go out of his way to drive past my residence. To which he responded by issuing a false statement to the police I threatened to “whack” him.

After finding new legal representation I withdrew $1,600 from the company account I was on shortly after Mr. Elder withdrew another $1,000 to start the legal process to have the partnership dissolved. Mr. Elder then called the police and brought them to my house stating that our partnership was dissolved because he, a 25% owner, sent me an email that he no longer wanted to be business partners and therefore what I did was “grand larceny and embezzlement” and threatened to ruin my life and have me thrown in jail immediately. After this I filed my lawsuit against the Elder’s for embezzlement and submitted the company’s bank account statements showing his frequent withdrawals as evidence to my attorney.

Mr. Elder also claimed my father was not who he said he was, although he said my father went by a different name to The Oklahoman than he did to The Gazette. Both are false statements to which my father’s birth certificate proves.
Mr. Elders final statement I would like to contest was that he did not believe the opening of my new restaurant would be helpful to the Custino’s brand. My former business was under his LLC (E-Genius Communications) DBA Custino’s Italian Kitchen, other than the DBA he has no rights to the brand. I filed a trademark shortly after the judge declared we were no longer in business piggy backing off my parents trademark from the 90’s so it is effective from 1998.

As far as Mr. Elders attorney Bill Zuhdi’s statements I would like to correct a few things as well. Mr. Zuhdi stated that the judge gave instructions that neither party could harm the other in conducting business. Direct from Judge Lisa T. Davis’s journal entry “neither party shall make any statements disparaging or harmful to Custino’s Italian Kitchen.” Mr. Zudhi’s other statement that the name “Custino’s Italian Kitchen” was reserved by Mr. Elder several years ago is hard to believe as we had a team meeting a few weeks before opening to decide what the name should be and came up with it then after throwing out many other options and we had not been in communication with them for more than a few months before going into business together after 10 years of not speaking.

As far as Mr. Elder’s defense against my allegations and evidence to support his claims against me, he was unable to produce anything. Any statement I have made I have evidence to support my claims. He continues to advertise that my father and I are attached to his business after the judge decreed I was no longer his partner and we left.

Angelo Custino

 

11.22.2012 at 11:19 Reply

This is Bud Elder and my lawyer has advised to me to be discreet here, and I will. If you have read Angelo's diatribe, just know this - all of these charges have already been dismissed by the court.  His father's birth name is Caliendo and he has been in federal prison for racketeering crimes.  

We often ask ourselves, what kind of a father would force his 21 year old son to apologize for his criminal lifestyle? We truly feel sorry for Angelo - the life he has been forced to lead is a very sad one. We have tried our best to do right by the Custinos, but Angelo chooses to follow his father from one disaster to the next. 

The electronic forums present a real problem for people in the right. The story written was totally fair and true, yet, although he had every opportunity to tell the reporter his side of the story, Angelo decides to raise falsehoods. They are by far their own worst enemies. We have absolutely no choice but to respond, and we wish we didn't have to.

 

11.23.2012 at 11:10

The case is still open. The charges I filed against my former partners have yet to be adressed.

 

11.23.2012 at 11:44

addressed*

 

 
 
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