In Toronto’s Venezuelan community, a fight for sandwich rights Can you trademark a national dish? Richard Trapunski reports
At lunchtime on a Saturday, Queen Street
West’s Arepa Café is buzzing with activity. Above a constant level of chatter—some in English, some Spanish—diners sip cappuccinos while struggling to keep the filling from bursting out of their arepas. These grilled cornbread sandwiches are popular in Venezuela, but a novelty on one of the busiest retail stretches of Toronto. You’d never guess it from the harmonious scene, but Arepa Café has ignited a contentious legal and cultural battle in Toronto’s Venezuelan community. The issue started when co-owner Eduardo Lee registered Arepa Café’s brand with the Canadian Intellectual Property Office as a legal trademark. Since then, a grassroots movement has mobilized amongst a number of concerned Venezuelans to ensure that the word “arepa,” a common staple of Venezuelan and Colombian cuisine, is prevented from being owned by any one individual or business. According to the Canadian Trade-marks Database, the mark was first filed on
September 11, 2009, shortly after the restaurant opened, and officially registered April 4, 2011. But the registration went largely unnoticed by the general public until a member of the Facebook group “Venezolanos en Toronto” opened a thread on the group’s discussion page just a few weeks ago. The Facebook thread brought to light an earlier legal dispute between Arepa Café and an unrelated business in Kensington Market called Arepa Market, a small stall within the El Gordo Fine Foods complex that also made and sold arepas using traditional Venezuelan recipes. Eduardo Lee, fearing that Arepa Market was too similar in name and design to his restaurant, sent Arepa Market’s 25-year-old owner, Luis Vega, a cease and desist letter, requesting he alter his brand to avoid confusion amongst customers. When Vega instead filed for his own trademark, Lee filed a statement of claim against Arepa Market. Before it could go to court, however, Vega voluntarily abandoned the mark.
Instead, Vega quietly closed Arepa Market and enrolled at George Brown College in graphic design. Both Vega and Lee avow that Arepa Market’s closure was unrelated to the earlier dispute with Arepa Café. Though Vega has abandoned both Arepa Market and the dispute with Arepa Café, many in Toronto’s Venezuelan community are outraged that CIPO would trademark a business with what they consider a common Spanish word. Inspired by the rapidly ballooning discussion thread on the “Venezolanos en Toronto” group, a handful of members spun off into a separate group, “La Arepa es de Todos” (“Arepas belong to everyone”). Originally intended as a forum to discuss the issue outside from of the non-partisan “Venezolanos en Toronto” group, “La Arepa es de Todos” quickly developed its own objectives and goals. “It’s a matter of education,” says group co-founder Gia Nahmens. “This is not about money or about business. Our sole purpose is to educate the Canadian trademark office that arepa is our daily bread, and cannot be owned or controlled
by any person in particular. We’re moving forward as a community to free this word from being monopolized.” The group has already sent a letter to CIPO explaining their position, but has yet to hear a response. Should the response be negative, their next step is to send in a petition, which has been circulating physically and online since early February. Meanwhile, a separate but related movement has been enacted under the name Free Arepa. So far, Free Arepa exists as a resource page to collect information about what an arepa is and its significance in Venezuelan culture, also ensuring that much of it is accessible as possible to English speakers. So far it exists only as a grassroots movement, but Free Arepa is going through the steps to register as an official non-profit organization in order to lend them more credence should they need to pursue the issue in a more formal manner. According to co-founder Victor Corrales, Free Arepa has a similar goal: “the short term objective is the recognition of the word ‘arepa’ as a part of the Venezuelan, South American culture as part of something that is common, is shared. It’s part of
our traditions, part of our food, part of our culture.”
use it in a way that will not be confused with his own trademark.
Both Free Arepa and “La Arepa es de Todos” have a number of hurdles in their way. According to Osgoode Hall Associate Professor and Intellectual Property specialist Carys Craig, it would have been much easier and cheaper to have opposed the application to register during its opposition period, before 2011. Had they been acting in favour of Arepa Market, they probably would have had a good case.
That includes the use of “Arepa” followed by any other descriptive word. Corrales argues that itself is a stifling of the term “arepa”, citing the example of Bloor Street’s string of similarly named sushi restaurants: Tokyo Sushi, Sushi on Bloor, Sushi Villa, etc.
“I suspect that, had the case gone to court, a court would have found that the use of AREPA by Arepa Market was not a confusing use,” she says. “In other words, it would not have infringed Arepa Cafe’s mark simply by using the word arepa, if this is indeed the generic name of the Venezuelan dish. In my opinion, this would be a classic case of over-reaching by the registered trademark owner.” Complicating matters is the fact that Arepa Café has also registered under the name “AREPA CAFÉ & design,” which includes not only the word “arepa”, but the visual elements of Lee’s brand. Lee himself claims that he is not stopping anyone from using the word “arepa”, just insisting that they
Lee, on the other hand, argues that his business uses the word “Arepa” to promote the arepa as his signature product and as a novelty to an unfamiliar Canadian market, whereas most arepa restaurants in Venezuela would be called “areperas”. Meanwhile, the proprietor is using the publicity to promote a message of inclusiveness and welcomes other Venezuelan businesses to open up their own arepa restaurants—with their own distinct brands. “The legalities of the situation are for my lawyers to deal with,” he says. “I’m focused on the day-to-day business of running a restaurant, and I welcome anyone that wants to eat here.”