Earl of Sandwich in trademark fight with John Montagu cafe

A SANDWICH shop has found itself in a turf war with the Earl of Sandwich after naming itself in tribute to the “creator” of the humble staple.

A Maffra cheese and sage toastie from John Montagu cafe in Woolloomooloo

THE owners of a humble Aussie sandwich shop have found themselves locked in a turf war with the 11th Earl of Sandwich.

Since 2013, the suburban cafe has traded under the name of the “creator” of the sandwich, the 4th Earl of Sandwich Lord John Montagu.

But when owners Narada Zhi Qiang Kudinar-Kwee and Sie Nam Raymond Lim applied to register “John Montagu” with the Australian Trade Marks Office in 2014, the current Earl of Sandwich, Lord John Edward Hollister Montagu, wrote to oppose the move.

The 11th Earl of Sandwich, Lord John Montagu, launches the "Earl of Sandwich" in London in 2001.

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Lord Montagu said the name John Montagu was inextricably linked to the Earl of Sandwich and that he already had a similar trademark after founding a chain of stores that trade in the US and France under the name “Earl of Sandwich”, selling convenience foods including trademark sandwiches such as “The Earl’s Club”, “The Original 1762” and “The Full Montagu”.

Lord John Montagu is credited with linking the Sandwich peerage to food placed between two slices of bread and eaten by hand, while playing cribbage at the exclusive London Beef Steak Club in 1762.

Breaking with the social norms of the day, which saw those of the Earl’s social status eat meals using cutlery after being served at a table with a great degree of ritual, Lord Montagu ordered his valet to fetch him some salt beef tucked between two slices of toasted bread.

Seeing the advantage of eating this way while in the middle of a game — the bread keeping hands free from grease without need for bothersome implements — fellow card players began to ask for ‘the same as Sandwich’ or simply “a Sandwich”.

As this practice spread the term for this type of food found its way into popular use.

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In the current dispute, the shop owners and the current Earl were granted 18 months by the registrar of trademarks to resolve their differences in private.

Having failed to reach agreement, registrar delegate Adrian Richards ruled in favour of the Woolloomooloo shop.
In a decision published last week, Mr Richards found that while both trademarks used the name Montagu, the inclusion of the name John in the shop’s name was sufficient to differentiate the trade marks and that as the shop name was not similar to any other well-known trademark in Australia nor likely to deceive or confuse consumers, the application to trade mark the shop’s name could proceed unless the Earl chooses to appeal the decision within a month.

He also awarded costs against the Earl of Sandwich.