|SUIT NO. C.L. 1995/M-440|
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN COMMON LAW
A N D
A N D
1. No admission is made as to paragraph 1 of the Statement of Claim.
2. No admission is made as to paragraph 2 of the Statement of Claim. Further, the Defendants say that all the certificates of registration of the Plaintiff's alleged trademarks referred to in the said paragraph expressly provide that registration of the marks does not give the proprietor thereof any exclusive right to the use of the word "McDonald's" or of the letter "M". At the trial of this action, the Defendants will refer to the said certificates of registration for their full terms, meaning and legal effect.
3. The registration of the Plaintiff's said alleged trade marks is and was at all material times invalid for the reasons appearing in the particulars of objections served herewith.
4. In answer to paragraph 3 of the Statement of Claim, the Defendants:
6. Save that the Defendants admit that the 1st Defendant is a company formed under the Laws of Jamaica on September 16, 1971, that it carries on a restaurant business under the name "McDonald's" at the address alleged and that the 2nd Defendant is presently the principal shareholder and Managing Director of the 1st Defendant, paragraph 4 of the Statement of Claim is denied.
7. Paragraph 5 of the Statement of Claim is denied. A restaurant under the name "McDonald's" has been carried on at 1 Cargill Avenue continuously since 1971, save for a few months in 1984 when the restaurant was closed as a result of a fire, and for almost three years between 1992 and 1995 when the restaurant was closed for repairs and refurbishing. Between 1985 and 1992 a lessee of the 1st Defendant operated the restaurant under the name "McDonald's".
8. Save that the Defendants deny that the Plaintiff has opened a restaurant in Jamaica as alleged or at all, paragraph 6 of the Statement of Claim is not admitted. The Defendants will say that the Plaintiff authorized the opening on or about the 28th day of September 1995, of a restaurant at Ironshore, Montego Bay under the name "McDonald's".
9. In answer to paragraph 7 of the Statement of Claim, the Defendants deny that they or either of them have passed off or attempted to pass off the business and restaurant at 1 Cargill Avenue as being the Plaintiff's business or associated with the Plaintiff, or that they or either of them has infringed the Plaintiff's trade marks as alleged or at all.
10. In further answer to the particulars to paragraph 7 of the Statement of Claim, the Defendants:
12. The Defendants deny paragraph 9 of the Statement of Claim and further deny that the Plaintiff is entitled to the relief claimed or any relief and save as is hereinbefore expressly admitted, deny each and every allegation in the Statement of Claim as if same were set out herein and traversed seriatim.
13. By way of Counterclaim, the 1st Defendant repeats paragraphs 2-11 hereof.
14. For at least seven years prior to 1971, Cee Bee's Limited carried on a restaurant at 1 Cargill Avenue known as "Cee Bees" and had extensive reputation and goodwill.
15. By Agreement dated 3rd day of December 1971, the 1st Defendant purchased the shares in Cee Bee's Ltd. and the restaurant business and thereby acquired the goodwill of Cee Bee's Ltd.
16. In 1971 the 1st Defendant changed the name of its said restaurant to "McDonalds" and erected prominent signs bearing that name. Those signs have at all times been prominently displayed at its said restaurant and continue to be prominently displayed.
17. The 1st Defendant has also operated two other restaurants at Port Royal Street in Kingston known as "McDonald's Buttery" and "McDonald's Fast Food".
18. By reason of the aforesaid matters, the 1st Defendant has extensive reputation and goodwill in Jamaica, and in particular, in the Corporate Area.
19. The 1st Defendant repeats paragraph 7 hereof and says that the Plaintiff threatens and intends to open or to authorize to be opened other restaurants under the name "McDonald's" in the Corporate Area and elsewhere in the island of Jamaica.
20. While the Plaintiff may have developed goodwill in the countries in which it has carried on business, it has also developed a very bad reputation in those countries in many respects, including the following:
(A) The Plaintiff receives between 1,500 and 2,750 customer complaints of food poisoning each year. It also receives numerous complaints of foreign bodies in food sold by them.
If the Plaintiff is allowed to open or to authorize the opening of restaurants in the Corporate Area under the name McDonalds, that will constitute a further passing off and trading on the Plaintiff's name and goodwill.
Damage has been and will thereby be caused to the 1st Defendant's reputation and goodwill which could not be readily or easily compensated for by an award of damages to the 1st Defendant.
THE 1ST DEFENDANT THEREFORE COUNTERCLAIMS
|SETTLED:||B. ST. MICHAEL HYLTON, Q.C.|
|Dated:||November , 1995|
|By:||MYERS, FLETCHER & GORDON|
|PER: DEFENDANT'S ATTORNEYS-AT-LAW|
Filed by:MYERS, FLETCHER & GORDON, of No. 21 East Street, Kingston
Attorneys-at-Law for and on behalf of the Defendants herein.