Local couple settle over restaurant name

Local couple settle over restaurant name

The Wolfes say they sold their Zesto drive-in at 11th and South, one of the sentimental landmarks of Lincoln's culinary history, to settle more than a year of legal conflict over their commercial use of the word

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Dave Wolfe, owner of Zesto's Ice Cream on Pine Lake Road prepares a chocolate ice cream cone for a customer. (Dan Eldridge)

The name alone, Zesto, is one of those words that carries across space, time and long summer twilights.

Little did Dave and Sandy Wolfe of Lincoln account for the name’s place in the law. 

The Wolfes say they sold their  Zesto drive-in at 11th and South, one of the sentimental landmarks of Lincoln’s culinary history, to settle more than a year of legal conflict over their commercial use of the word Zesto.

The settlement lets them keep the name Zesto on their walk-in place at 15th and Pine Lake Road,  an indoor store they opened in 2003. It’s open year-round. The drive-in is seasonal.

The Wolfes aren’t complaining.  They say they got fair market value for the South Street drive-in.

And the settlement requires them not to say anything derogatory in its aftermath. 

“It was an extremely hard decision to make,” said David. “Selling wasn’t in any long-term plan. … It was a very emotional thing.”

“I did some grieving,” said Sandy, choosing her words carefully. 

The Wolfes bought the South Street store in 1998. David, one of the Wolfe Electric partners, grew up on Prospect Street, just blocks away from the drive-in.  Thirty years ago, as newlyweds, the Wolfes say they came over from north Lincoln on dates to the Zesto. After they bought it, they, their daughters, nieces and other relatives worked there.

The new owner of the South Street store is T.J. Group Investments, Todd Jansa and co-owner Jerry Irons, who have a Zesto in Wahoo, and who challenged the Wolfes’ use of the name Zesto in federal court almost a year ago.

That lawsuit said T.J. Group acquired the exclusive rights to use the name Zesto, (in all capital letters,  no less,) for restaurant services in Nebraska, from Zesto Inc., a Missouri  corporation owned by one Harold Brown. 

Brown, who could not be reached, had the foresight to registered the widely used Zesto “mark” with the U.S. Patent and Trademark Office in 1985, according to the lawsuit. That was 37 years after the name first appeared and long after the original Zesto business organization folded.  

The Wolfes say they assumed a state-registered mark allowed them use of the name when they bought the Zesto. But their Alpha Wolfe corporation acknowledged last year that T.J. Group had superior rights to the name, according to the federal lawsuit.  

The Wolfes said they spent more than $30,000 in legal fees defending their use of the name, and they could no longer afford to continue.

Jansa could not be reached. But Irons said the legal issue was never about the use of the Zesto name on the South Street drive-in, because it had  been used there so long.  It was just about the more recent use of Zesto on the Pine Lake store, he said.

As it turns out, the drive-in’s new owners are Zesto suckers, too.

“I’ve been eating at that restaurant for 30 years,” said Irons, who’s from Lincoln. “Both Todd and I have. Oh, yeah, you don’t mind standing in line for 20 minutes, because it’s like a social event.   You talk to people and the kids are out there playing.

“I had a friend whose mother’s water broke while she was standing in line.  … We want to keep that magic going.” 

The lawsuit contained boilerplate about infringement under the federal Lanham Act, irreparable harm, unfair competition, false advertising and so on. 

But the cherry on top of this legal sundae is this:  “The Mark is ‘famous’  within the meaning (of) 15 U.S.C. 1125(c).” 

That legal point could not be contested in a court of law, on paper or by anyone waiting patiently on the gravel in front of 11th and South. Zesto is and was indisputably famous, then, now and in recollections, for as long as they last.  

People drive across this town for a Zesto hot dog. 

Google Zesto and ice cream and you find Fort Wayne, Atlanta, Pierre, Athens, Tenn., among others.

There are Zesto T-shirts that have a dotted line across the midriff, just like the one on a Zesto malt cup, that said “fill up to this line.” Irons said the T-shirts are back.

Omaha sportswriters are incapable of writing about the College World Series without mentioning the Zesto near Rosenblatt Stadium. 

David Wolfe said he and Sandy offered a Zest-O-Mat ice cream freezer they inherited to the Nebraska Historical Society when  parts for it got too difficult to find.

“It was just too big,” he said.  “The size of a small car.”

The recipes for what people consumed at the South Street drive-in go with the Wolfes to the Pine Lake store, Sandy said.

She calls them trade secrets.

“Let’s just say, there’s a reason people love our ice cream,” she said.

Reach Richard Piersol at 473-7241 or at dpiersol@journalstar.com.

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