Establishment 203 ordered to rename itself after Justin Hemmes trademark win
A court has ruled there can only be one Establishment, with a Brisbane restaurant ordered to rename itself after a successful trademark claim by Sydney hospitality giant Merivale.
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A court has ruled there can only be one Establishment, with a Brisbane restaurant ordered to rename itself after a successful trademark claim by Sydney hospitality giant Merivale.
On Friday the Federal Court found Fortitude Valley steak and Italian restaurant Establishment 203 had infringed the registered trademark for the word Establishment, which is the name of Merivale’s iconic Sydney CBD bar.
The Brisbane restaurant will be permanently restrained from calling itself Establishment 203 or anything “substantially identical”, with 30 days permitted to change the name.
In his judgment, Justice Ian Jackman said Merivale kingpin Justin Hemmes’ business Hemmes Trading had held the trademark for Establishment since May 2001 in respect of a “multi-level restaurant, bar and hotel business” at 252 George St.
Establishment 203, which opened in November 2023, had derived its name from its parent company’s Queensland beef business, which includes a Grantham abattoir with the establishment number 203 since 1997.
Justice Jackman referred to Establishment’s explosion onto the hospitality scene during the 2000 Sydney Olympics as the genesis of the trademarked word’s inextricable link with the Merivale venue in the public’s mind.
“I infer that tens of thousands of patrons attended Establishment during the two week period of the Sydney Olympic Games,” Justice Jackman said.
“During the following eight months until the filing of the trademark application on May 23 2001, with the venue operating at capacity most weekends, I infer that the total patronage at the Establishment venue was in the hundreds of thousands.”
When the Brisbane restaurant’s name was announced in November 2023, Hemmes Trading sent a cease and desist letter referring to their Establishment trademark.
Owner Brendan Menegazzo gave evidence he did not think he was doing anything wrong and proceeded with the Establishment 203 name.
“I thought it was obvious that nobody would be confused between a hotel and pub in Sydney called ‘The Establishment’ and a fine-dining steak and Italian restaurant in Brisbane called ‘Establishment 203’,” Mr Menegazzo wrote in an affidavit.
“We do not want to be associated with the Hemmes Establishment … we want our restaurant to be associated with our beef, not with an unrelated hotel in a different city.”
Justice Jackson found Establishment 203 genuinely believed it was entitled to use their name, and did not intend to cause any improper association with the Merivale venue.
But Justice Jackson found the “203” reference was insufficient to distinguish the Brisbane restaurant from the Merivale venue in an ordinary consumer’s mind, and found it was “deceptively similar” to Hemmes’ business name.
“The business has drawn around 20,000 to 25,000 patrons per week for over 20 years, from which a significant reputation has accrued,” Justice Jackson said.
“The name Establishment has been displayed throughout the business venue in ways which would be noticed and remembered by customers.”
Justice Jackman said Hemmes Trading had succeeded in its claims of trademark infringement and contraventions of the Australian Consumer Law.
He said Hemmes Trading was entitled to costs, but not damages after rejecting submissions Establishment 203 had acted “with reckless disregard” or “flagrantly” infringed the trademark.
In a cross-claim, Establishment 203 had argued Hemmes Trading was not entitled to register the Establishment trademark due to other businesses using that name before them.
But Justice Jackson found the eight key months between Establishment’s opening in September 2000, and the registration of the Establishment trademark in May 2001, were sufficient to distinguish Merivale’s venue to make it registrable as a trademark.
Establishment 203’s cross-claim for the Establishment trademark to be cancelled was therefore dismissed.
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Originally published as Establishment 203 ordered to rename itself after Justin Hemmes trademark win
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