Barbara Gayle, Staff ReporterHard Rock Ltd., the American billion-dollar corporation along with five other overseas companies which operate the popular Hard Rock Cafe have brought a multimillion dollar lawsuit in the Supreme Court against four local companies for allegedly infringing their trademarks and goodwill.
The first defendant is Hardrock Ltd. which operates two establishments, Hard Rock Cafe Jamaica at Shop 20, Coconut Grove Shopping Centre, Ocho Rios, St Ann and Hard Rock Cafe at Shop 32, Montego Bay Shopping Centre, Montego Freeport, Montego Bay, St. James. The second defendant Hard Rock Cafe Factory Outlet Jamaica Ltd. operates three shops called Hard Rock Cafe Factory and Outlet which are gift shops located at Shop 20, Soni's Plaza, Main Street Ocho Rios, St. Ann, Shop 2B, Taj-mahal Shopping Centre, Ocho Rios and Shop 28, Holiday Village Plaza, Coral Gardens, Montego Bay.
Denied claims
The third defendant Hard Rock Reggae Ltd. operates a jewellery and gift shop establishment at Shop 7 Sandcastles, 15 Main Street, Ocho Rios, which bears the name Hard Rock Cafe. The fourth defendant, Herb Rock Cafe Ltd., operates Hard Rock Reggae Cafe and offers accommodation, food, drink, entertainment and souvenir T-Shirts. The premises is also offered for rent to promoters of stage shows, the plaintiffs contend.
The defendants have denied the plaintiffs' claims. The second third and fourth defendants which are represented by Winston Spaulding, Q.C., have filed a counter-claim naming the Registrar of Companies and the Attorney-General as defendants to the suit.
It is the plaintiffs' contention that the defendants have acted with full knowledge of the existence of the plaintiffs and their restaurants. They said the defendants are also aware of the plaintiffs' merchandising operations and of the rights which the plaintiffs possess in the Hard Rock Cafe marks and in the goodwill which are attached to those marks but they have acted without regard for the plaintiffs' proprietary rights.
"The said businesses are operated with standards of service and general presentation which are substantially lower than those associated with the plaintiffs' restaurants and merchandise outlets and feature the sale of counterfeit goods and other substandard items which activity has the potential of being particularly damaging to the plaintiffs because of the detrimental impact of such activity on the plaintiffs' goodwill given that the plaintiffs do not offer substandard services or goods or counterfeit or "knock off" goods for sale to its patrons, " the plaintiffs contend.
Damages
It is the plaintiffs contention that it lost US$750,000 because of the defendants' activities in Jamaica and it is seeking to recover that sum in addition to damages for infringing its trademark and goodwill. The plaintiffs state that negotiations for a franchise agreement between the American company Hard Rock Ltd. and Anakin Holdings Ltd. (Anakin) to open new Hard Rock Cafe restaurants in Jamaica and the Cayman Islands had to be amended to exclude Jamaica as the proposed licensee did not consider it cost-effective to open a legitimate Hard Rock Cafe restaurant in Jamaica whilst the "pirate restaurants" were operating.
The initial negotiations with Anakin contemplated an initial licence fee of US$1 million. However, in light of the defendants' activities in Jamaica , and the exclusion of Jamaica from the agreement, the initial fee was reduced to US$250,000. The calculable loss to the first plaintiff from its inability to sell franchise rights for Jamaica is US$750,000.
The plaintiffs which are being represented by attorney Sandra Minott-Phillips, of the law firm Myers Fletcher and Gordon, are seeking an injunction to restrain the defendants from carrying on business under the same name or style "Hard Rock Cafe" or "Hard Rock" and from infringing the plaintiffs' trademarks, passing off or attempting to pass off the defendants' businesses as that of the businesses of the plaintiffs until the action has been heard and determined. The summons for the injunction came for hearing in the Supreme Court last month but was put off for another date to be fixed.
Hard Rock Ltd., the first defendant which is being represented by attorneys Hugh Thompson and Kerry-Gaye Brown have filed a defence denying that the plaintiff had substantial reputation and goodwill in Jamaica. It stated that it commenced operating its business in 1989 and had never passed off or attempted to pass of its business as that of the plaintiffs. The first defendant contends that if it is prevented or deprived of its goodwill, it will suffer irreparable damage and that could not be adequately compensated by an award of damages in its favour.
Allegations
The other defendants have denied operating any restaurants as alleged by the plaintiffs. They are contending that they cannot be held accountable for any alleged loss or damage arising from the operation of any business by anyone as alleged by the plaintiffs. The defendants and in particular the fourth defendant have denied the allegations that they have infringed the plaintiffs' trademarks. The fourth defendant has denied operating an establishment known as Hard Rock Reggae Cafe. They claim that the third and fourth defendants should not have been made parties to the suit.
In relation to the Registrar of Companies being joined as a defendant, the second defendant stated that its name and trademark were lawfully approved by the Registrar of Companies and therefore the plaintiffs cannot recover damages for its name and trade mark. "Any such issue would be a matter between the said Registrar of Companies and the plaintiffs," it stated.
The defendants are seeking a declaration that the second defendant has not infringed any trade mark belonging to the plaintiffs. Also that it is wrongful for the plaintiffs to have joined the third and fourth defendants to the suit and therefore the plaintiffs have acted deceitfully, maliciously frivolous and have abused the process of the courts.
The other plaintiffs are Hard Rock Cafe International (USA), Inc., Hard Rock International Ltd., and Hard Rock Holdings Ltd., both in London and HRC Canada Inc., in Canada and Rank Holdings (Netherlands) BV, in the Netherlands. The plaintiffs currently operate restaurants in 36 states worldwide including Florida and various countries of the Caribbean and Latin America. The first of these restaurants started in 1971 and the numbers have consistently grown over the ensuing years.
