Paradise Consortium Ltd v Franklyn Mason
| Jurisdiction | Jamaica |
| Judge | Palmer Hamilton, J |
| Judgment Date | 02 November 2023 |
| Court | Supreme Court (Jamaica) |
| Year | 2023 |
| Docket Number | CLAIM NO. 2018CD00564 |
[2023] JMCC COMM 48
Palmer Hamilton, J
CLAIM NO. 2018CD00564
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE COMMERCIAL DIVISION
Civil Practice & Procedure — Tort — Passing Off — Whether the Defendant has breached the tort of passing off by using the name ‘Jungle Fiah’ — Elements of Passing Off — Whether the Claimant has established goodwill or reputation in the name “Jungle Fyah” — Whether the Claimant has demonstrated a misrepresentation by the Defendant to the public by using the name ‘Jungle Fiah’ — Whether the Claimant suffered or is likely to suffer damage due to misrepresentation — What remedies, if any, are available to the Claimant — Remedies — Whether the Claimant is entitled to an Order for recovery of possession — Whether the Claimant is entitled to recover rent — Costs
Mr. Keith Bishop and Ms. Roxanne Bailey instructed by Bishop & Partners for and on behalf of the Claimant
Mr. Leroy Equiano of Counsel for and on behalf of the Defendant
By way of a Claim Form filed the 9 th day of October, 2018, the Claimant claims against the Defendant for an injunction to restrain the Defendant from passing-off restaurant business with the use of the words ‘ Jungle Fiah’ or business names usually similar to ‘ Jungle Fyah’ and other consequential orders, recovery of possession and an order for the payment of outstanding rental. The following Orders are being sought:
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(a) An injunction to restrain the Defendant, whether acting by himself, his servant, agent or otherwise however from doing any of the following acts:
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(i) Passing off restaurant business(es) with the use of the words ‘ Jungle Fiah’, or other business names which are visually or aurally similar to ‘ Jungle Fyah’, not being the restaurant business of the Claimant; and
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(ii) Enabling, assisting, causing, procuring or authorizing others to any of the acts aforesaid.
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(b) An order for the delivery up and/or destruction upon oath of all pamphlets and advertisement material with the use of the words ‘ Jungle Fiah’ or business names which are visually and aurally similar to Jungle Fyah, ‘Jungle Fiah’, printed or written, labels, other articles in the possession, custody or control of the Defendant, the use of which would be a breach of the forgoing injunction.
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(c) An inquiry as to damages or at the Claimant's option an account of profits and an Order for payment of all sums due with interest.
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(d) Recovery of possession forthwith or alternatively 30 days from the date of the Order.
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(e) An Order for the Defendant to pay the Claimant the sum of $1,301,400 being outstanding rental from October 21, 2017 to September 1, 2018 is owed and continuing.
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(f) Costs, interests and any other relief.
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(g) Further and other relief.
The Claimant is alleging that on or about the 21 st day of December, 2010, the parties entered into a rental agreement titled “Concession Agreement” which allowed the Defendant to occupy the premises known as Lots 4 and 5 [Shop # 5, AMC Plaza] Congrieve Park Pen, Port Henderson, Portmore, in the parish of St. Catherine being part of parent title registered at Volume 1041 Folio 309. The Claimant further alleges that $100,000.00 per month was agreed for payment of rent and this was paid in full by the Defendant between January 1, 2011 to March 1, 2016. From that sum, the Defendants were to pay a certain amount to the owner(s) of Lot 5 on behalf of the Claimant, as the Claimant had a rental agreement with the said owner(s) of Lot 5.
It was further alleged that in April 2016 the rent was increased to $200,000.00 for the first time using a revenue based formula, which estimated the monthly revenue at $2,000,000.00 per month and a concession fee of 10%. A discount of $40,000.00 was given and the rent per month was at $160,000.00. The payment to the owner(s) of Lot 5 was also increased and the Defendant was still required to pay it. This rental period ran from April 1, 2016 to July 1, 2018. During this period the Defendant only paid the sum of $50,000.00 to the owner(s) of Lot 5 and owes to the Claimant the sum of $917,400.00 for the period October 21, 2017 to July 1, 2018.
By way of a notice to the Defendant, the Claimant again increased the rental effective the 1 st day of August, 2018 using the revenue based formula to arrive at a rent of $242,000.00. As at the 1 st day of September, 2018 the Defendant owed the Claimant rent in the sum of $384,000.00. During this rental period, the Defendant was paying rent to the owner(s) of Lot 5. The total rental owed to the Claimant by the Defendant now stands at $1,301,400.00.
On or about the 20 th day of November, 2017, the Claimant caused a Notice to Quit to be served on the Defendant for recovery of possession and a Letter of Demand for non-payment of rent to be delivered to the Defendant. Since this was done, the Claimant alleges that the Defendant has refused and/or neglected to make any further rental payment. Due to the lack of rental payment by the Defendant, the Claimant states that it has been difficult to meet monthly and annual obligations associated with the business. The Claimant needs the premises for its own use and occupation because it wishes to embark on a business venture using the premises.
On the 16 th day of February, 2015, the Claimant successfully registered the business name ‘Jungle Fyah’ in accordance with the Registration of Business Names Act and this was renewed on the 18 th day of February, 2018. The Claimant alleges that its agents have worked assiduously to develop a reputation of the ‘Jungle Fyah’ brand in the restaurant business generally and jerked food in particular. Agents of the Claimant would regularly host weekend food events to advertise and promote its brand in the Portmore and wider St. Catherine, did a media blitz to ensure that the brand would be known to all households in St. Catherine through the use of mobile public address systems, printing of pamphlets and flyers, social media network and emails. It is due to this that the Claimant alleges that it has built up and owns a valuable goodwill in the name of ‘Jungle Fyah’ when used in relation to the restaurant business and in particular the jerked food business. Accordingly, whenever members of the public see trade name and/or brand ‘Jungle Fyah’ on any advertisement or anything similar thereto they take the same to be the restaurant business of the Claimant.
On the 1 st of November, 2017 the Defendant successfully registered the business name ‘The Jungle Fiah Buffet Restaurant Limited’ and started operation in several areas of St. Catherine. On the 19 th day of December, 2017, the Claimant's agents caused a cease and desist letter to be written to the Defendant regarding the use of the recently registered business name. The Defendant placed advertisements for chefs at his ‘Jungle Fiah’ locations and by doing so would have caused the public to believe that the advertisements were sponsored by the Claimant's trade name ‘Jungle Fyah.’
The Claimant further alleges that the aforesaid acts of the Defendant misled members of the public to believe that ‘Jungle Fiah’ is one and the same as ‘Jungle Fyah’ as they are visually, aurally and conceptually similar to the casual and unwary customer. It is further alleged that the Defendant has passed off and/or attempted to pass off and/or enabled, assisted, caused or procured others to pass off ‘Jungle Fiah’ not being the restaurant business of the Claimant, as the Claimant's trade name restaurant business called ‘Jungle Fyah.’ The words ‘Jungle Fiah’ have no natural connection to the Defendant and the words at the date of adoption by the Defendant were very distinct and well known to be associated with the Claimant.
The Claimant called two (2) witnesses in support of their claim, namely, Mr. Audley Deidrick and Mr. Carvell McLeary, who are both directors of the Claimant.
The Defendant stated that he was never a tenant of the Claimant but had a Concession Agreement with the Claimant. The Defendant further stated that he never entered into any mutual agreement with the Claimant in respect of Lots 4 and/or 5, Shop # 5, AMC Plaza. By way of this agreement, the Defendant was allowed to use the facilities, being the equipment that were being used by the Claimant at Shop 5, Lot # 5 at a concession fee of $100,000.00 monthly. The Defendant admitted that he paid a rental on an agreement with the owner of Shop # 5, Lot 5 and never made any such payment on behalf of the Claimant as he, that is the Defendant, had a rental agreement with the owner of Shop # 5, Lot 5, Miss Annie McBean.
The Defendant denied that there was an agreement between himself and the Claimant regarding an increase in the monthly concessionaire fee, as there was never any such agreement between the parties. The Defendant further stated that he is not indebted to the Claimant.
The Defendant admitted that a Notice to Quit was served on him on or about the 20 th day of November, 2017, however, he stated that the Claimant has no right or authority to give notice for recovery of possession or demand for money for rent as the Claimant is not in occupation of any premises as tenant. In fact, the Defendant is now the legal owner of Shop # 5, Lot 5, AMC Plaza, Congrieve Park Pen, Port Henderson, Portmore, in the parish of St. Catherine.
The Defendant contended that when the Claimant's business commenced in 2009 it was in operation for no more than nine (9) months and had to close as it was not profitable due to low customer patronage. The Defendant stated that he took over a business that was closed and without any recognition whatsoever. The name ‘Jungle Fyah’ was unregistered and the Defendant expended money to promote the...
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