Justin Hemmes’ company takes rival restaurant to court over Establishment name
Two up-market bar and restaurants have wound up in court over a dispute about their titles, which could “confuse” customers.
Two up-market Australian restaurants have found themselves pitted against each other in court over their almost identical names.
Owners of Sydney’s popular Merivale venue Establishment launched an intellectual property case against Brisbane eatery Establishment 203 in February, saying customers could be “confused” by the similarity.
Hospitality tzar Justine Hemmes’ company Hemmes Trading has asked the Federal Court to make orders preventing the Queensland restaurant from using the establishment name.
Barrister Ed Heerey KC told the court on Monday that George St’s Establishment was an “entertainment precinct” started around the time of the Sydney Olympics in 2000.
Since then it has attracted guests from “all over the country”, including Brisbane where the rival venue opened in November last year.
Mr Heerey said it would be argued in court Establishment 203’s owners did not check the trademark registry when naming their new business at Fortitude Valley.
In court documents, Hemmes Trading claims Establishment 203 was being deceptive or trying to pass off its services as being connected to the Merivale venue.
That was because the services on offer at both establishments were “exactly the same”, it argues.
“A number of Australian consumers … are at a real risk (that is a finite and not trivial risk) of being confused (which includes being perplexed, mixed up, left in doubt or caused to wonder) as to whether it might not be the case that the parties’ respective products come from the same source,” court documents claim.
Hemmes Trading has also asked the court to award it damages, saying it has “has demanded that the Respondent cease engaging in the above conduct, but the Respondent has refused to do so”.
Establishment 203, whose owners described it as a “relaxed yet sophisticated, pure yet refined and offers an exceptional fusion of steak and Italian cuisine”, is defending the case.
The court heard it will argue its name was chosen in good faith as a reference to the Stanbroke abattoir, from which the meat it serves was sourced.
Frances St John, acting for Establishment 203, told the court the abattoir was named in 1997 – three years before Sydney’s Establishment was first opened.
It also argued the use of the Establishment name, to the extent it was linked to Merivale’s business, was “confined to Sydney”.
“We say there can be no dispute that this was in good faith,” Ms St John said.
Headed by acclaimed chef Ben O’Donoghue, Establishment 203 has also lodged a cross claim against Hemmes Trading that argues the trademark does not distinguish what goods or services it provides.
Ms St John said her client was keen to have the trademark dispute dealt with as soon as possible to provide certainty for the new business.
Justice Ian Jackman said it appeared unlikely any mediation would have a “great prospect of success” but urged the parties to explore any compromises that could me made.
The court heard dates for a three-day trial would be set down for either September or October this year, if a compromise can’t be found.
The matter will return to court for a case management hearing in July.