Name war threatens night market market, war, night, threatens, Name

Sakura

Wed, April 22 2009



The ongoing feud over the rightful ownership of Richmond’s popular summer night market has taken a dramatic turn.

Right into Federal Court.

The founder of the largest cultural event in Western Canada – which draws crowds of 30,000 on weekend nights – has filed suit against the businessman he claims has since "hijacked" the event through alleged theft of intellectual property.

Raymond Cheung’s Federal Court action is proceeding to trail in Vancouver May 12, just three days prior to the planned opening of Paul Cheung’s (no relation) Summer Night Market located on the original 10-acre site along Vulcan Way in Richmond.

The action seeks damages and other remedies, as well as a court-ordered injunction that would effectively halt the opening of this year’s Summer Night Market.

"Yes, we are asking for an injunction," Raymond told the Asian Pacific Post. "It’s up to the judge what is appropriate. An injunction is one of the items we’re bringing to the court’s attention."

The saga of Richmond’s summer night market, an annual bazaar of delicious Asian foods, colourful stage shows and cheap consumables, is long and storied.

According to his statement of claim, Raymond Cheung launched the public market in the summer of 2000. Over the ensuing years he says he used the names "Richmond Night Market," "Richmond Night Market Summer Festival," and the Chinese characters for "Richmond Night Market" to promote and build up his business and goodwill.

Prior to the summer of 2008, however, Raymond was unable to secure a lease renewal with landlord Ko Chong, and was forced to look elsewhere for a location for his summer market. Raymond told the Post he is still actively looking for a new site, and is currently in negotiations with two Richmond landlords.

Nevertheless, that same summer in 2008, Paul Cheung – who attended Eric Hamber Secondary School in Vancouver with Stephen Chong – was able to strike a deal with his former classmate’s father, and secured a lease on the open industrial property at 12631 Vulcan Way through his company Lions Communications Inc.

Paul told the Post he simply saw a business opportunity and seized it.

"What kind of loss is there?," said Paul. "He (Raymond) couldn’t negotiate a deal that he felt was a good price. He walked thinking he would get another place. That didn’t happen.

"That’s why we came in . . . we wanted to rescue the event basically. It’s a great community event, so many people benefit out of it . . . the charities that come down, the talent that comes out of it. It’s a good thing for everyone, the vendors, the public."

But Raymond Cheung, in court documents, claims Paul Cheung did more than simply seize a business opportunity. He alleges Paul lifted wholly and without permission his vendor application forms, his venue site map, his website photographs and "embarked on a course of conduct and . . . made statements and representations that have been calculated to mislead the public into believing that [Paul’s] public market is associated with [Raymond’s] Richmond Night Market."

Paul flatly denies these allegations.

"People can sue you for anything. It’s up to the courts to decide," he said.

He admits to using the term "Richmond Night Market" in his earliest neighbourhood promotions for the event, but argues he used the "generic term" in good faith and changed his operating name to "Summer Night Market" after Raymond complained.

"It’s very unfair . . . it’s a very generic name and it’s easy to catch someone on that," said Paul.

The man who would open this year’s Summer Night Market in Richmond also argues that Raymond did not trademark his three night market names – Richmond Night Market, Richmond Night Market Summer Festival and the Chinese characters for Richmond Night Market – until after Paul had launched his 2008 market venture.

Raymond’s lawyer Paul Smith said this is true, but argues it has no bearing on the case.

"Our legal action, our lawsuit, is framed in what’s called ‘passing off,’" said Smith, of Vancouver law firm Smiths IP.

‘Passing off’ is a tort in common law and can be used to enforce unregistered trademark rights while preventing one person from misrepresenting his or her goods or services as being the goods and services of another.

"My client’s position is that the entire event was hijacked through the alleged infringement," added Smith." We wouldn’t be moving forward if we didn’t think we had a good case."

While the war over words and the fight for rights plays out in Federal Court over five days next month, the public is left to wonder if there will even be a market to attend this summer.

Raymond Cheung says he had no choice but to take his fight to court.

"We have no problem with anyone opening up a business," he said. "We left the property in 2007. We don’t concern or care. But when they start using our name, passing off, taking our floor plan, our applications, the whole thing, it’s unheard of.

"It’s just insane, someone taking the whole business as their own. They’re pretending they’re us!"

Paul Cheung says Raymond’s case is one of sour grapes.

"He cancelled his event first of all, so there was no event," he said. "There was ours and that was it. There was no confusion.

"I think he’s trying to kill this event. If he can’t host it, he doesn’t want any one else to host it."

Paul Cheung, who has a 2008/2009 permit from the City of Richmond to run his market, says his 2009 event will go ahead as planned May 15 to Oct. 4.

His company’s website (www.summernightmarket.com) boasts: "Growing on momentum, building on excitement! Coming May 15, 2009 Richmond’s largest summer night market!"

Raymond Cheung insists he will be up and running by June or July at a new site he would rather not disclose.

His company’s website (www.richmondnightmarket.com) proclaims: "The Official Richmond Night Market 2009 location will be announced soon, please stay tuned!"

When the dust finally settles, and notwithstanding a Federal Court injunction shutting down Paul’s Summer Night Market, the public may be well served by this ongoing feud.

Richmond may yet play host to two summer night markets in 2009.

Meanwhile, the battle royale between the rival Richmond businessmen will continue in Federal Court in Vancouver on May 12 through 19.




Honestly which one do u guys like better??
I like the good old Raymond's Nite Market better~
Much more popular, more entertainment, more food, more things to buy~
Last year I didn't reli bother going...just for the food maybe~ lol~

I didn't even know it's opening again on May 15...
There wasn't much advertisement...

simon

I think we should look at the case in a lawful way objective.

if A has a company doing a business, and the business is onhold but the company is not closed down.
Then B company kicks in do the same  ...
rainbow-davie 發表於 2009-4-29 13:29

same slogan or name then MAYBE there will be passing off or trademark infringement.

in general, it is not illegal to copy people's business model and compete with them directly. if i were the guys doing the new night market i would have called it "Night Market of Richmond" and designed completely new forms so both of Raymond's claims - trademark infringement and copyright infringement(of the sign up forms) will be totally invalid. the new hosts themselves were too lazy...its not that difficult to create new forms.

with that said, the claim that their forms were copied MIGHT be valid though, this is under copyright laws. i remember Raymond's forms had a bunch of grammar/spelling errors, so it might be easy to prove it was copied. But in any case, the form is nothing substantial and likely will give him very little compensation(probably not even enough to pay his legal fees).

rainbow-davie

I think we should look at the case in a lawful way objective.

if A has a company doing a business, and the business is onhold but the company is not closed down.
Then B company kicks in do the same business model, using the same application, same idea, same slogan, do you think it is legal?

I dunno about how you guys feel or know.  But even in Computer industry, if someone create a software (even very simple one), someone else bases on the functionalities of that & re-engineering another close to identical software will be illegal.

I think if the new event is located in antoher site, with another name & with another administration process, then it will be okay.. But what the new event company doing now can really fall into illegal action.

Lik

i think it will be quite hard for him to claim that there was "passing off". it was quite clear to reasonable people that it was not the same night market(it was mentioned in numerous news articles and it was never represented to be the same event). Raymond's lawyer of course will say there is a case, otherwise he would have immediately asked the court for an "Interlocutory Injunction" (injunction before the trial) right away la. But of course, if he did ask for the Interlocutory Injunction and lost the case, he will have to pay the loss to the victim.
The fact of not asking for an injunction in the first place shows this is merely a threat, no basis at all.
simon 發表於 2009-4-28 21:20

Thank you for the insight, esp about the point on interlocutory injunction.

It really makes me wonder though -- what was Raymond thinking when he filed for the lawsuit? I quite agree with Simon's opinion that he probably wanted to use the lawsuit as something to "threaten" the other party or possibly using it as his bargaining chip to negotiate for something. However, given that his case was weak to begin with, why proceed with a lawsuit like that? It's almost like he bluffed at the poker table, but the other party called and raised him back. And now he is stuck with what he got himself into...

-Lik

Sakura

You must watch too many TVB dramas.
LOK 發表於 2009/4/28 02:53 PM

I know....lol~
Watched too much 珠光寶氣~

simon

i am not a lawyer but i have some experience in intellectual property.....this Raymond guy would probably have a stronger case if he protected his intellectual property properly at first (ie. register copyrights, trademarks). this case looks so much like a case of finding something to sue for in order to threaten the other party to compromise. i think he filed this sometime last year(it takes on average 24 months to get a court date for the federal courts).

i think it will be quite hard for him to claim that there was "passing off". it was quite clear to reasonable people that it was not the same night market(it was mentioned in numerous news articles and it was never represented to be the same event). Raymond's lawyer of course will say there is a case, otherwise he would have immediately asked the court for an "Interlocutory Injunction" (injunction before the trial) right away la. But of course, if he did ask for the Interlocutory Injunction and lost the case, he will have to pay the loss to the victim.
The fact of not asking for an injunction in the first place shows this is merely a threat, no basis at all.

bbqfish

went there almost every year, but never able to buy anything..

Lik

I just don't see how this Raymond fella would have much of a case at all. First of all, he was using some super generic names to begin with. Secondly, even his own side admitted to not trademarking these super generic name initially. Based on these 2 facts alone, what grounds does he have to sue?

If Raymond can prove that Paul has stolen or otherwise directly copied his vendor application forms, venue site map, and website photographs, he might win some small consolation prize for these things. Then again, it doesn't seem all that hard for Paul to counter the allegations. After all, I don't see how you can claim intellectual property rights on sales booth arrangement when all it amounted to was a few straight aisles running down the venue. And Paul would have to be pretty stupid to totally plagiarize Raymond's stuff for his own use. (Certainly, Paul must have learned the rules of plagiarism when he was in college / university?)

There is no doubt that the Richmond night market has been a most successful summer event for everyone in the city. To have Raymond putting a court injunction on it to prevent it from being hosted this year seems like he is purely doing this out of selfishness and a bad case of sour grades, and that leaves a sour taste in my mouth.

-Lik

LOK

That's y I said, I know it reli doesn't make a whole lot of sense to bash ur own business and pay it urself to fix it up~
But u never know wut rich ppl will do~
If they have the spare $$, and he kno ...
Sakura 發表於 2009-4-28 15:46

You must watch too many TVB dramas.

Sakura

If I remember correctly, I think the news said the cable fixed in one or two weeks, so the night market could still open at the same date.  If so, why do you do that yourself? Why do you want to pay  ...
LOK 發表於 2009/4/28 11:53 AM

That's y I said, I know it reli doesn't make a whole lot of sense to bash ur own business and pay it urself to fix it up~
But u never know wut rich ppl will do~
If they have the spare $$, and he knows he'll get a lawsuit from Raymond..
And if he hates Raymond's guts...y not??

I m not saying that that's the case, but I just heard it from rumour~