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.
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
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
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
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.
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
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
Many of you have been waiting (im)patiently for the end of my hiatus, wondering where I've been and when you'll get your treats again. Many of you do know what has been going on in my world, and I thank you all for your support.
I've spent the better part of the past year caring for my mother who suddenly fell seriously ill, and at the same time we've uprooted and moved. We've finally bought our dream farm and have been happily renovating our new home in the Peterborough area. If you can believe it, we have our own private valley!
Despite all of this distracting beauty and new lifestyle, I've been itching to get back into the pastry kitchen, and have been revisiting old favourites, tinkering, and working on new recipes. I plan to continue to do so for the next little while, until the house and other things in my life settle down a bit. I hope to be able to start working on plans to restart The Queen of Tarts before the year is up. Don't despair: the treats are on their way, so stay tuned!
How quickly November speeds by, and suddenly it's Christmas. We have so many lovely Christmas cookies; they are out on the shelves already, but here's a sneak peek at a few. Boxed sets of snowflakes and ornaments make a great hostess gift, and you know that there's something here for every kid on your list! Stay tuned for more photos in the next few days.