Rivals find lots to cry about
City food outlets both claim they hold the rights to the name Spilt Milk
Two Auckland business owners have a very good reason to cry over Spilt Milk. One’s a milkshake and coffee truck parked in Epsom, the other a cafe which serves Vietnamese food in Pt Chevalier.
They are both called “Spilt Milk” and are in the midst of a legal challenge over who gets to keep the name.
Calum Dykes, 22, who started his mobile outlet last year, says he found the other firm was using the name months after he started using it.
Dykes, whose truck is normally set up on Kohia Terrace, Epsom, says he has proof he started using the name in October when he emailed a brief to a graphic designer for marketing.
“It’s an interesting name, it gets you thinking. It’s very relevant to milkshakes and coffee.”
On May 5 Dykes was officially registered by Auckland Council under the name Spilt Milk. But he didn’t trademark it as he wanted to use the $150 registration fee for other expenses like equipment.
He said a customer asked him in July if he was opening a cafe in Pt Chevalier.
“They showed me the [cafe’s] Facebook page and I . . . felt a massive pit forming in my stomach.
“I naively assumed I wouldn’t need to defend my name to protect my rights to use my intellectual property,” Dykes said.
On May 12, the Pt Chevalier cafe announced its name on Facebook and registered a trademark on May 30. Dykes advised the cafe in early July to change its name before it opened on August 1.
Then on July 28 intellectual property lawyer Laura Carter wrote to Dykes saying the cafe didn’t consider him to have prior rights to the name.
Dykes has submitted a trademark opposition to the Intellectual Property Office. He estimates the process will cost at least $1700 in legal fees.
Having taken out a $20,000 loan to start his milkshake truck, he said a bill of that size was crippling to a small business. “It is a very expensive process, in terms of monetary, emotional and mental costs.”
The Pt Chevalier cafe didn’t sell milkshakes, said Dykes.
“That was the salt in the wound, their focus is more on coffee tonics and they do mainly Vietnamese food.
“For me, who’s making milkshakes and coffees, to have to give up my name Spilt Milk to someone who is very vaguely associated with milk as a product . . . It’s almost insulting.”
The owner of Spilt Milk in Pt Chevalier, Rakesh Mistry, declined to comment. But Carter said if the cafe had to rebrand now it could seriously damage their “fledgling business”.
“They had no knowledge of Mr Dykes, or any use of a Spilt Milk brand before they chose it for their cafe.”
Intellectual property lawyer Jason Rudkin-Binks said both the cafe and the food truck would be able to keep their name regardless of the outcome of Dykes’ trademark objection.