Name war threatens night market

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.