The Queen of Torts
What's in a name? For Linda Kearney, right now it's nothing but trouble
by Max Fawcett
You can find our original story on Kearney’s move from the farmers market to storefront, which ran in our October issue, here
By Max Fawcett
Linda Kearney knew that transitioning from the farmers market to a storefront wouldn’t be easy. But she never expected it to be this difficult. “I thought I’d figured out all the contingencies,” she says, “but who expects to be sued in their first eight months of business?”
Kearney certainly didn’t. But in May, a few weeks after she opened the doors to her 104 street location, Kearney received a letter from the lawyers of a Toronto-based business person named Stephanie Pick, who used to operate a business that was also called the Queen of Tarts. More importantly, Pick still owned the trademark for the name, and believed that Kearney’s new store constituted an illegal infringement upon it.
Kearney admits that she didn’t react quickly enough to the initial letter. “I’m not a person who’s been sued before, or has experience with these things,” she says. Already overwhelmed by the responsibilities of running a new business and emboldened by a lawyer client – not, as it turned out, one with an understanding of intellectual property law – who suggested she ignore the notice, Kearney waited until
the court-imposed deadline before responding to Pick’s lawyers. ”I said, ‘Look, I haven’t been avoiding dealing with it, I’m just paralyzed and don’t know what to do.’ At that point, I didn’t even know what kind of lawyer I’d need.”
Kearney says that Pick’s lawyers told her that she’d be given time to find appropriate representation. But they didn’t specify how much time that would be, and she reckons that her second mistake was in not getting a clarification. “I didn’t ask how long, but I didn’t hear a word about it until I was notified by them on September 28 that they’d won a default judgment against me, and they’d waited until after the appeal period to notify me of this.” In August, due in large part to the fact that Kearney had not delivered a statement of defence within the prescribed time, the Honourable Mr. Justice Shore issued a default judgment against her in the amount of $10,000, plus legal costs.
Kearney doesn’t dispute the legality of Pick’s claim. “She did trademark it, and I respect and understand that,” she says. “Frankly, if she had called me at any time up until when we’d opened, I probably would have said it wasn’t worth a fight.” Indeed, Kearney had seriously considered ditching the name when she made the move from the farmers market, thinking that its emphasis on tarts didn’t do justice to the range of products that she was selling. But her family, friends and customers all advised her against making a name change.
Now, Kearney doesn’t have a choice in the matter. And while she’s doing her best to make the most of the situation by encouraging customers to participate in the re-naming of the business, she remains puzzled by Pick’s decision to seek recourse in the courts rather than simply picking up the phone and talking to her. “I’ve always thought that two people could work out their differences, but I was never given the chance to do that here, not once,” she says. “I guess that’s the way the world works these days.”
As Kearney points out, it’s hard to imagine that Pick’s sales have been affected in any way by her own business. “Nobody understands more than I do how hard she must have worked to develop her small niche in Toronto,” Kearney says. “I get that. But there’s nothing in my existing business or plans that would have been a threat to her interests.” More to the point, Pick hasn’t had a functioning business since December of 2009, when her High Park store closed down. Her website indicates that she’s planning to re-open, but makes no mention of a date or location.
Still, the law is the law, and Kearney’s unwitting decision to run afoul of it will cost her dearly. “For some people, that wouldn’t be a lot of money,” she says of the judgment. “But it’s a lot of money for me right now, that’s for sure.”
Stephanie Pick did not respond to Alberta Venture’s request for an interview.
Follow Alberta Venture On: