Edmonton bakery infringes on Ontario chef's trademark
When Linda Kearney started selling her tasty lemon tarts at an Edmonton farmers' market, her six-year-old granddaughter came up with a name for the business while reading Alice in Wonderland.
Queen of Tarts, a twist on the classic story's Queen of Hearts character, became Kearney's food persona and stuck as her popular sweets stand transformed last year into a trendy new bakery and cafe.
She didn't know the name would actually lead her down a rabbit hole, straight into a legal nightmare.
"I never thought it would be an issue," said the 54-year-old former social worker as she sat in her downtown cafe, her pale face flushed red and tears sprung from her eyes.
An Ontario pastry chef who owns The Queen of Tarts trademark has successfully sued Kearney for infringing on her brand name.
The Federal Court ordered Kearney to pay $10,000 in damages, plus court costs. She also has to pay thousands more to re-brand her business with a new name.
Kearney said she was served with the suit last May, three months after the cafe opened its doors. She was overwhelmed with starting the restaurant, had put all her life savings into the venture and became too depressed to deal with the issue.
She didn't hire a lawyer and struggled to navigate the legal system on her own.
The court issued a default judgement in August and she didn't find out about the ruling until it was too late to appeal. She said she was too busy to deal with the matter during the Christmas season.
Kearney said she knows she is in contempt of court. The Queen of Tarts sign still hangs above her door.
"But I can't have no sign. I'm just so worried about having any customers," said Kearney. "I need some time and some money to do this."
Company name trademarked in 2004
Stephanie Pick first opened her The Queen of Tarts pastry shop in west Toronto in 1998. She said an employee at a former cafe came up with the nickname for her and it stuck.
Pick's sweet creations quickly became popular. Her Mexican chocolate chipotle tarts developed a cult following. She was even invited to appear on Martha Stewart's TV show in New York City.
In 2004, her businessman father decided to trademark The Queen of Tarts name for her as a Christmas present.
"He was right in saying, you know, you've worked hard to establish this brand and you should protect it," said Pick.
She said people from across Canada and the United States travelled to Toronto to buy her products.
Despite her success, Pick closed the shop in 2009 and moved to a farm near Peterborough,Ont., for a change of pace. She has also been busy caring for her mother, who is fighting various forms cancer.
But Pick said she has always wanted to bake professionally again. She may soon start selling her treats in fine food shops in southern Ontario. And when she has more time, she may reopen her retail business.
So when Pick heard about Kearney's plans to open a cafe in Edmonton under the name Queen of Tarts, she contacted her lawyer.
Pick said Kearney was sent letters a year ago ordering her to stop using the business name. Pick received no response, so the lawsuit proceeded.
Pick said she was initially willing to sell Kearney a licence to use the Queen of Tarts name in Alberta. But Kearney wasn't responding to any legal correspondence.
Name often the 'most significant' asset
If Kearney doesn't soon change her company's name and pay the settlement, contempt of court proceedings may follow, Pick said. Pick has already shut down Kearney's Facebook and Twitter accounts that use the name Queen of Tarts.
"It's not at all the way I wanted to do things," said Pick, 43.
"I'm the one who is the victim. It's my trademark. We've been trying to be as accommodating as possible. Ms. Kearney created this situation herself."
Pick's lawyer, Aaron Rubinoff of Ottawa, said he deals with dozens of trademark applications, oppositions and infringement cases each month. And he has never dealt with a defendant like Kearney, who is so reluctant to accept the legal process.
He suggested anyone starting a new business search the potential name in the federal government's trademark database. Although companies can incorporate or register names in each province, Rubinoff said federal trademark protection is a smarter idea.
"Often a company's name is their most significant, important asset," he said.
Kearney said she incorporated her business name through the province and believed that was all she had do to. Fellow small business owners told her the same thing.
Now she's giving others new advice: get a trademark. Kearney said once she has the money, she'll be getting one for her new business name.
She said her granddaughter Zoe, now 13, recently came up with the new title: Dauphine. It's the French monarchy term used to describe the next-in-line to be queen.
Kearney said she hopes to soon order a new sign for her cafe that reads Dauphine Bakery and Bistro, and hopefully she can get back to enjoying her work and baking tarts.
"As stressful as this is and as exhausting as this is, I get to do that. And that's a good thing."