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.
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