Needless Trademark Spat In Canada At Least Has Exactly As Polite Ending As You'd Expect

from the eh? dept

It probably shouldn't be all that surprising that there is a decent volume of trademark disputes that occur over restaurant menu items. Somewhat like the craft beer industry, the restaurant industry has for a long, long time looked toward creative output for menu items as a way to stand out. Because there are only so many ways you can name food or a dish, occasionally this creative naming practice causes trademark issues.

A recent example of this occurred in Canada, where multiple diners were making omelettes and calling them "mish-mash." Beauty's is a Montreal staple that has served a mish-mash omelette, composed of the normal egg ingredients alongside items like hotdogs, peppers, and salami, for several decades. It was only in 1989, though, that Beauty's got a trademark on the name. Other diners, such as Cosmos and Bagel Etc., have offered up their own mish-mash omelettes going as far back as the early 1980s. Despite the trademark, there were no disputes over the menu items until this year, when Beauty's sent C&D notices to several restaurants.

So last month Beauty’s sent out cease-and-desist letters from its lawyers to prevent Cosmo’s and Bagel Etc., among others, from having its trademarked Mish-Mash, or variations of the Mish-Mash name, on their menus.  

Beauty’s has also requested those who use the Mish-Mash name to make a goodwill donation of $100 to the Jewish General Hospital.

By all accounts, the C&D notices were as polite and relatively benign as you would expect to come from a Canadian business. Still, it's worth wondering aloud both why such notices needed to be sent given the peaceful coexistance of these restaurants for decades, as well as whether Beauty's claim is actually valid, considering the length of time during which it failed to police its trademark at all. Were these other restaurants to decide to argue in court that the term had become generic for Beauty's lack of policing, it's hard to see how they wouldn't win that argument on the merits.

Instead, however, both Cosmos and Bagels Etc. responded with equal congeniality.

Regardless, it’s worth noting that Bagel Etc. and Cosmo’s have agreed to the cease-and-desist demand and have now changed the names of their Mish-Mash creations — with no fuss. The identities of the other eateries affected are not yet known, so it’s not certain if they will challenge.

Furthermore, Bagel Etc. co-owner Simon Rosson has also obliged with the $100 donation to the Jewish General Hospital, and even made out his money-order contribution as coming from Beauty’s and not Bagel Etc., so Beauty’s could get the resultant tax receipt.

Rosson has no issue with the Beauty’s request, considering it has the trademark, but wonders, like so many others, why this issue is coming up now.

“I just find it a little weird with the whole lawyer’s letter,” Rosson says. “Just give me a call and I’d do it, no problem.”

And so it all ends with very little fuss. That doesn't change the facts, however, including that the sudden decision to police a trademark, even politely, is itself annoying.

Filed Under: canada, mish mash, omelettes, trademark
Companies: bagel etc., beauty's, cosmos


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  • identicon
    Anonymous Coward, 15 Nov 2019 @ 1:25am

    A mish-mash of a trademark dispute.

    reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 15 Nov 2019 @ 5:03am

    Oh, Canada!

    You just want to ☪☺Σ✡ℹ💲✞

    reply to this | link to this | view in chronology ]

  • identicon
    Colin Ripley, 15 Nov 2019 @ 6:31am

    Omelette

    Remember years ago think one of these restaurants had a mish-mash omelette with over 3000 calories. Think people had to sign a wavier to eat it.

    reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 15 Nov 2019 @ 8:19am

    Rosson has no issue with the Beauty’s request, considering it has the trademark, but wonders, like so many others, why this issue is coming up now.

    And that's nice and dandy, but it serves to entrench that "trademark = ownership of a word", where there might be no merit to it. Tons of trademark are granted without merit (as happens with parents too), so we can't let this go to easily.

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 15 Nov 2019 @ 8:47am

    Prior use?

    Is prior public use not a defense against trademark violation claims?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2019 @ 9:31am

      Re: Prior use?

      If "mish-mash omelette" was a term previously in use by the general public, or by the targeted businesses, yes. A prior use of the term "mish-mash" to mean a mixture of things (unrelated to this omelette) may or may not be good enough.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 15 Nov 2019 @ 10:16am

        Re: Re: Prior use?

        Other diners, such as Cosmos and Bagel Etc., have offered up their own mish-mash omelettes going as far back as the early 1980s.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Nov 2019 @ 9:57am

    Is it illegal to make a Denver Omelet anywhere other than Denver?
    /s

    reply to this | link to this | view in chronology ]

    • identicon
      Sharur, 15 Nov 2019 @ 11:48am

      Re:

      I know you're being sarcastic, but if Colorado was in the EU, it might be...

      They've made similar rulings regarding, e.g. Parmasian cheese (according to the EU, must be made in the vicinity of the city of Parma) and champaign (according to the EU, must be made in the Champaign region of France).

      reply to this | link to this | view in chronology ]

    • icon
      BernardoVerda (profile), 15 Nov 2019 @ 2:51pm

      Re:

      I'm pretty sure "Denver omelette" is still safe.
      "Cornish Pastry" however, can get you in trouble.

      It might have seemed a sensible idea, when first applied to wines, but it's appearing less and less rational every year this goes on.

      reply to this | link to this | view in chronology ]

  • identicon
    Jordan Chandler, 15 Nov 2019 @ 10:41am

    Cosmos

    Ridiculous. I've been eating at Cosmos for 25 years and eating the mishmash. beauty's is a dick.

    I was literally there last week:

    https://montrealgazette.com/opinion/columnists/brownstein-when-lawyers-get-involved-with-the-b reakfast-mish-mash

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Nov 2019 @ 1:02am

    Wrong legal battle

    At first I thought "why are they fighting over terminology that makes your menu item sound questionable", then I saw the actual "omelet". Mish-mash kinda describes it well ...
    The real crime here is calling that "thing" an omelet!

    reply to this | link to this | view in chronology ]


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