US brand targets cafe over name

By Ged Cann

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Grey Garden Cafe owners Bruno Cavell and Amelia Hedge feel threatened following threats of legal action from a lifestyle brand in the USA.
Grey Garden Cafe owners Bruno Cavell and Amelia Hedge feel threatened following threats of legal action from a lifestyle brand in the USA.

A small cafe tucked away on Grey St has been threatened with legal action by a lifestyle brand in the US over alleged copyright and trademark infringement, leaving the owners feeling intimidated and bullied.

The dispute revolves around the cafe's name, Grey Gardens, a name shared with a 1975 American documentary. The lifestyle brand is run by Eva Beale, who based her collections on the style of Edith Beale, one of the characters in the documentary and a relative of Eva's.

As well as serving coffee, the cafe runs an online shop which sells trinkets, secondhand and locally crafted goods.

The cafe is owned by husband and wife Bruno Cavell and Amelia Hedge, who began receiving emails from Ms Beale in October last year.

"It's ridiculous because we're so small, and she said you may be small now but we might want to grow our business and then we will clash," Ms Hedge said.

"I got a bit nervous because I knew she probably has some money behind her that we don't have."

The pair explained over email that relevance of Governor Grey, who was a keen botanist, to New Zealand and said they chose the name because they are located on Grey St in a concrete shed decorated with plants.

"She didn't have a bar of that ... apparently the only Grey Gardens in the world is that house in the Hamptons," Mrs Hedge said.

Eva Beale said she had trademarks in New Zealand already and that while the cafe was fine there could only be one Grey Gardens brand.

She said when it came to online it did not matter where the cafe was located.

"Imagine yourself as a customer and you're looking to buy something from a store called Grey Gardens, and you do a search and two stores come up, each selling similar items - aren't you confused? Don't you automatically think they are the same company?" she said.

"The thing with trademarking is if the consumer is going to be confused it is an infringement."

Ms Beale described the story as a "legacy brand" which was based on the story of the family.

The cafe had its Facebook page closed down without being consulted by the social media site said Ms Hedge - despite having trademarked the cafe logo.

"That's a year's work gone and 700 followers, and Facebook banned me from using my personal account for three days as punishment for breaking intellectual property laws," Mrs Hedge said.

Without the money to advertise through conventional channels Ms Hedge said Facebook was essential to attracting business.

Facebook has since reinstated the page after Hamilton News queried their processes.

Despite having limited means, the pair have received offers of help from lawyers.

"A lawyer in Auckland, a friend of ours, has a friend who specialises in intellectual property and she knew about the documentary. She doesn't like bullies, and she said she would help us out if [Beale] pursues her threats," Ms Hedge said.

"He's a private investigator as well and he believes she's just bluffing, because if she really meant what she said I would have been contacted by her lawyers, not by her directly."

The cafe has changed its branding to emphasise the cafe element and has changed their website domain name to further differentiate themselves.

"I think she found out about us because people were tagging pictures of themselves in my cafe on her Facebook page," Ms Hedge said.

Cafe co-owner Bruno Cavell said he was suspicious that the whole thing was an exercise by Ms Beale to make money off the pair by having them pay her for licensing rights.

He said starting a cafe was a 365 days-a-year job, and with two children age one and three, the whole ordeal created extra strain on him and his wife.

Intellectual property lawyer Ben Cain of James & Wells said Eva Beale had an international trade mark registration for 'Grey Gardens' in four classes of goods, covering fragrances, skin lotions, jewellery, dinnerware and dishes, and textile fabrics for home and commercial interiors.

"Just because someone has rights in one class or several classes does not mean their rights transcend every single class of goods or services."

He noted the cafe had an application to register their logo for 'cafe services' that had been accepted by the Intellectual Property Office though not yet registered.

"Under the Trade Marks Act, Ms Beale in the United States would have difficulties successfully challenging Ms Hedge's application because Ms Hedge's application is in a totally unrelated area," he said.

In Mr Cain's experience any legal challenge made by Ms Beale would be unlikely to succeed.

"Ms Beale would have to prove there is a significant likelihood of consumers in Hamilton being confused or misled or deceived by Mrs Hedge's use of the name with the cafe.

That would require her to first establish awareness of her 'Grey Gardens' trademark in Hamilton."

"Let's assume Ms Beale could establish awareness [of the lifestyle brand], she still has to establish there's a likelihood of deception or confusion among consumers, for example by perceiving a link between the goods sold by the cafe and Ms Beale."

If the cafe sells vintage goods and crafts this may present a possible issue under the Trade Marks Act or the Fair Trading Act, Mr Cain said, if any of those goods were identical or similar the categories of goods sold under the lifestyle brand - provided Ms Beale could establish the brand's reputation in the first place.

Ms Beale said she regularly shipped items to New Zealand but terminated Hamilton News' call before customer awareness could be discussed.

- Hamilton News

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