Appeal Court settles Japs trademark dispute

WHATS in a name?

For the owners of Japs Fried Chicken Ltd, everything.

On Friday, the Appeal Court ruled in a hard-fought, decades-old trademark dispute between businessman Nicholas "Japs" Thomas, 63, and Bhagwatee Maraj and her children, overturning a 2016 decision of the High Court.

Both parties claimed the right to ownership of the “Japs” name. Thomas claimed to be the original “Japs” while Maraj, who died in 2021, said she was known as “Madam Japs.”

The trademark battle began in 2010 when the company -Japs Fried Chicken Ltd - applied for the registration of “Japs Fried Chicken… The Best Taste Around & Device.”

Thomas also applied to register the trademark “Japs And Device.” With two strikingly similar submissions, the Intellectual Property Office (IPO) registrar stayed both applications until the court determined who had the right to the trademark.

In that decision, Justice Margaret Mohammed ruled in Thomas’s favour. She said Thomas was the “originator” of the Japs brand although not the sole proprietor of the business as both he and Maraj - both of whom were in a relationship in the 70s - were the joint owners and had exclusive rights to the name.

She held the company was not entitled to register the trademark and also declared the name was an asset of the business owned by the two and Thomas’s half share was held by Maraj for their children.

The company and Maraj appealed the decision and on Friday, the Appeal Court directed the IPO registrar to register the trademark “Japs Fried Chicken: De Best Taste Around! And Device” in the company’s name and refuse Thomas’s application.

When the couple began the food business, it was named Japs Fast Food. After their relationship broke down around 1989 - the ruling said Maraj described it as abandonment with him accusing her of infidelity and telling lies- she and her son from a previous relationship opened Japs Fried Chicken with some 13 outlets throughout Trinidad.

Thomas claimed he and Maraj agreed to create a trust for his 50 per cent interest for their sons.

The Appeal Court decision, written by Justice James Aboud, traced the couple’s long history and that of the company in several pages of the 49-page decision. Also presiding on the appeal were Justices Allan Mendonca and Charmaine Pemberton.

Aboud said there were discrepancies overlooked by the trial judge when she analysed who owned the business and the existence of the trust.

However, Aboud said having regard to the evidence as a whole, it was incapable of justifying a finding that there was a trust agreement.

He pointed to testimony that Thomas had “surreptitiously stripped the restaurant upon his departure in 1989.

“The important question that the trial judge should have asked is this: is the dismantling and removal of vital restaurant equipment and furniture indicative of the existence of a trust meant to financially profit the alleged beneficiaries?”

“... In my opinion, the fundamental finding of fact upon which the whole appeal turns was whether a trust agreement was created in 1989 when Mr Thomas suddenly separated from Ms Maraj and cut all his ties with the business (as it then existed).

“...In my view, the trial judge was plainly wrong to make a finding that a trust was created in 1989,” Aboud held.

He also said Maraj, having been left alone for over 18 years, grew and expanded the business into a chain in plain sight of Thomas who said nothing of the expansion under the name “Japs Fried Chicken” and who contributed nothing to it.

“In short, he had no interest for all those years, and he showed no interest until some two years after his youngest son was 18 years old and only after the company was incorporated with the name ‘Japs’ and the trademark application was made.

“...Mr Thomas had absolutely nothing to do with the operation or tremendous growth of ‘Japs Fried Chicken’ from 1989 onwards or the development of its goodwill for 25 years.

“..., it is, in my view, plainly wrong for the trial judge to have refused the company’s application to register the trademark ‘Japs Fried Chicken.’”

Japs Fried Chicken Ltd, Maraj and her grandson, Romario Mahabir, who was appointed administrator of his grandmother’s estate, were represented by King’s Counsel Anand Beharrylal, Yaseen Ahmed and Tara Lutchman while Thomas appeared in person at the appeal.