Facts

To everyone who has sent me so many wonderful emails and wishes:

Thank you so much for your support and kind words; it has been quite a year for me.  The following remarks are in response to a CBC interview full of untruths that a woman in Edmonton who has been infringing on my trademark did.  I have had quite a few interview requests and emails, so I thought it easier to explain the facts once and for all on the website.

However, I am working on plans to start baking and selling again, and will post new developments on the "updates" page of my blog.  Hopefully I will have some product in Toronto by next fall.

I opened the Queen of Tarts on Valentine’s Day, 1998.  It was a tiny, self-run location, in fact a very poor retail location due to a lack of parking, and so I supplemented my sales with wholesale to Pusateri’s and other fine food shops.  I attracted the notice of top food reviewers in Toronto, and moved to an up & coming neighbourhood in the west end, and even hired staff.  We were highly acclaimed by all of the local food press and local television shows, as well as by customers.  We have never spent any money on advertising; all of our business was built by word of mouth.  In 2005 I was a guest on the second episode of Martha Stewart’s new show, which of course spurred a media rollercoaster.  I have appeared in dozens of magazines, and newspapers, and on numerous national television shows (both before and after the Martha Stewart appearance).  My business was in constant growth, with my sales solidly increasing every year; I was successful and profitable.

In 2009 I made the decision to shut down temporarily and move outside of Toronto to take a bit of time off and start a family.  Unfortunately, my mother was diagnosed with Stage 4 lung and brain cancer, had cranial surgery, rounds of radiation and chemo, and I have been taking care of her and her affairs (moving her, selling her home, car, business, etc, taking her to I don’t know how many doctor’s appointments and therapies).  Therefore I am a bit behind schedule in re-entering the pastry world.  I do still have all of my equipment ready to go, waiting for me in a storage facility nearby.  My decision to close temporarily was a personal one, and I made it clear on my website that it was a temporary closure.

Ms Kearney’s current plight is entirely her own doing.  She would have one believe that we opened our businesses within days of each other in March 2005.  In fact, my trademark application was filed in May of 2004, approved that September.  It was then advertised nationally for the prescribed period of time, there were no objections, and it was registered in March 2005, showing use of the name from 1998, when I opened my business.  If she had initially done a proper search, she should have avoided using the name altogether.

We became aware of her store in November 2010.  Cease and desist letters were sent to her by registered mail in December 2010 and January 2011, which she ignored.  Her claim that she knew nothing of the matter before the Statement of Claim was served in May is false.  She was given until June 16, 2011 to respond or file a statement of defense.  On June 15, Paul (her husband?) contacted my attorneys asking for advice regarding filing for an extension of time, and about default judgments.  My attorney advised him to retain his own counsel, as he could not advise hime, and offered consent to the 15 day extension that Paul asked for.  Paul advised that he would contact the Federal Court to determine how to do this (file for extension).  They never did file for this extension, but my attorneys granted them 45 days anyways, as Ms Kearney was unrepresented, and they wanted to grant her some leeway.

Over and over she was granted time and opportunity to negotiate a licensing agreement.  She is painting me as a litigious corporate monster, when in fact my business began and grew in the same grass-roots, community-based manner as her own.  From the beginning my attorneys advised, and I agreed, that a licensing agreement for Alberta or the western provinces would be the ideal solution.  Litigation is extremely expensive and time-consuming, and is a last resort.  She never responded to any of my lawyers’ letters, and to claim that she called them with an offer and was rebuffed is a complete untruth.   

In early August (exact date to be confirmed by my attorney) we filed the motion for the default judgment, in Federal Court in Ottawa.  She implies that we went behind her back in Ontario to do so.  Federal court is in Ottawa because it is the capital of our country and happens to be in Ontario.  We got the judgment on August 23, 2011.  On September 20 a lawyer from Gowlings in Toronto contacted my attorneys regarding the matter.  On September 27 we were informed that Ms Kearney had in fact not retained his services.  On September 28 she was sent the judgment and the reasons for judgment.   Her claim that it was “too late to appeal” is not true.  It is extremely likely that the two lawyers that she did hire and obtain advice from counseled her that it would be a futile endeavor after they reviewed the facts.

Ms Kearney claims that she tried to negotiate a payment plan, which is also untrue.  She retained another lawyer in Edmonton, who offered a settlement of $1,500 total, which was inappropriate, considering the fact that her neglect of the situation had forced me spend many, many, many times that amount in legal fees.  The very same day, she boasted in Alberta Venture magazine that she had no debt at all, as well as that she had “put money aside for a contingency fund”.  If this is the case, there is no reason why she could not and cannot take a loan or line of credit to pay me the moneys that the Federal Court of Canada orders her to. 

Ms Kearney claims that we demanded the money “yesterday” and we did not “give her time and economic room to make the transition”.  In fact, when the judgment was delivered we gave her several months to change the name and pay the monies.  She has ignored the situation for so long that is now has become “yesterday”.  Again and again, my attorneys have granted her more time, because she has elected to not retain counsel.  She has ignored multitudes of letters from us, did not appear for a scheduled debtor judgment examination, and ignored more correspondence asking her to name a date convenient to herself.  She is contempt of court for this, for non-payment, and if we had not forced her through Facebook and Twitter to change her name, (a process which is not in any way complete, as “Queen of Tarts” still reads on her front window), she would still be using it in contempt of the court’s decision.   She held a “promotion” on Twitter in October, asking customers to come into the store with name suggestions, but no winner was ever announced, and no attempt to actually change the name was made until we forced her to.  This promotion was in fact a stalling tactic to make us think that she was complying with the court’s decision, as well as a marketing strategy for her.  In reality, she has had half a year to use up stickers, business cards, and other marketing materials, and her store signage is actually simply vinyl lettering which could be replaced for a few hundred dollars.

It should be noted that even if she had filed a Statement of Defense, she would not have had any success.  A default judgment is not granted simply because one party does not show up.  Just as if she had filed a Statement of Defense, we had to prove our case with a huge amount of documentation and case law.  As I had used the name since 1998 and had begun the trademark process in 2004, I would have prevailed.  The fact that it was a default judgment is a moot point.  Her claim that it was “too late to appeal” is not true.  It is extremely likely that the two lawyers that she did hire and obtain advice from counseled her that it would be a futile endeavor after they reviewed the facts.

Ms Kearney’s defense that I was not using the name because I had closed my store is weak.  I hold the rights to the name in Canada whether or not I am in operation.  I am taking a personal hiatus, all of my equipment is in storage, and my website states that I plan to re-open.   This in no way indicates abandonment of the name.  Using a trademark on grounds of abandonment is a very complex matter in itself, which requires a lengthy legal process, as I understand.  (I cannot go into your house while you are on vacation and say, “hey, you’re not watching that tv, I’m going to take it for myself” and after being charged with theft complain that it would be too expensive to buy a new one.)

Ms Kearney has put herself in this position.  She was given time and many opportunities to negotiate, or change her name.  She has been in contempt of the Federal Court’s decision for many months now.  She has no respect for the court’s decision, nor for the trademark itself.  In fact, her new trade name “Dauphine” is also trademarked.  This fact is easily discoverable online in the trademark database, which is free, does not require a lawyer, and takes less than 5 minutes.  


http://www.ic.gc.ca/app/opic-cipo/trdmrks/srch/vwTrdmrk.do?lang=eng&status=&fileNumber=1021113&extension=0&startingDocumentIndexOnPage=1  


Her refusal to follow standard name-searching procedures is not my fault.  Registering a name is standard business procedure, and while many small businesses do not elect to trademark their names, it is their responsibility to discover if the name that they propose to use is.  Even if my trademark registration was still pending at the time of Ms Kearney’s beginnings at the farmer’s market, a proper name search would have shown it.

If I allowed Ms Kearney to use my mark without a licensing agreement, my mark would be weakened.  The fact that she is in Alberta is moot.  Someone could then open a business in Toronto using my mark, and claim that I was already allowing it to happen elsewhere.  This is how trademarks work.  A Canada-wide trademark means that I own the rights to the mark across Canada.  Period.

Ms Kearney is trying to elicit public sympathy (and business) in the guise of being attacked by the “big corporation” (which I am not).  In fact, I am the one whose rights are being infringed upon, whose property has been taken.  I have only attempted to defend my rights, and the implication that I am litigating out of greed is ludicrous.  Anyone who has hired legal counsel will know the pain of the monthly bill, and I can attest that the settlement that the court has ordered from Ms Kearney will in no way come close to covering my legal costs.  Her stalling tactics have cost me a fortune in legal bills.  If she had dealt with the situation in the beginning, instead of ignoring our letters, she would not be in this position.

Finally, I am surprised that this is even newsworthy.  It is a simple matter of infringement, which should have been resolved months ago, and Ms Kearney’s avoidance tactics have put her in this situation.  She should have owned her mistake and corrected it immediately.

I have available hundreds of emails and other documentation to support the facts as stated above. 

Stephanie Pick