The Tip Top Cafe has been a fixture in Dunedin for 75 years, albeit with some minor variations in its precise nomenclature. The name goes back to 1936 when Albert Hayman and Len Malaghan opened Tip Top ice cream parlours in Dunedin and Wellington.
The site of the original Tip Top Restaurant in the Octagon is now occupied by the Alibi Bar after the lease was sold in 2007, with the renamed Tiptop Cafe moving five doors down the road in Princes St.
How much longer the cafe and its owner, local businessman Barry Timmings, can keep the name "Tiptop" is open to question. Last Friday, the High Court in Wellington released its decision quashing the Dunedin cafe's trademark registration.
Mr Timmings had applied for this and was duly granted trademark rights earlier this year. Then two weeks ago, Fonterra Brands, which owns Tip Top Ice Cream, appealed. The decision in itself does not mean the cafe must desist from using the name, although Mr Timmings believes he may at some time in the future be required to. Such an eventuality would be unacceptable and unwise.
In 1936, following the establishment of the Tip Top ice cream parlours, the Tip Top Ice Cream Company was registered as an ice cream manufacturing company. By 1938 the company was making its own ice cream and had outlets in the lower half of the North Island, and in Nelson and Blenheim.
In May that year, Tip Top Ice Cream Company Auckland Limited became part of the expanding operation, but it wasn't until 24 years later, in 1962, that the company built the largest plant in the southern hemisphere in Mt Wellington, Auckland. Two further plants were built in Christchurch and Perth and, in 1997, Tip Top was purchased by a West Australian food processor. It was subsequently bought in 2001 by Fonterra.
In his decision to overturn the Tiptop Cafe trademark, Justice Young said: "The proposed expansion by [the cafe] raises the question whether this is an opportunistic application designed to trade on the existing Tip Top trademark and thereby advantage itself. The public inconvenience, if the mark is registered, will be significant. It will either confuse or deceive the public as to who it is buying its ice cream and other goods from."
With respect to the learned judge, the people of Dunedin, who have been frequenting first the Tip Top Cafe, now the Tiptop Cafe, for 65 years longer than Fonterra has had rights to the name Tip Top Ice Cream, are not so easily deceived or confused. The so-named cafe with its intergenerational associations is woven into the historical texture and "cultural" fabric of the city.
Nor are they likely to sympathise with big international companies that use their power and affluence to bully, albeit according to the strict letter of the law, small enterprises into submission and compliance.
Take the international Hilton Hotel chain's pursuit of the Blackball Hilton - undoubtedly so-named with the owners' tongues firmly within their cheeks. All that arguably achieved was recognition for the small West Coast town, the emergence of local folklore and a swift and mischievous rejoinder in the renaming of what is now a Blackball institution: formerly the Blackball Hilton.
Should the worst happen, Mr Timmings might have recourse to a similar solution. In the meantime, as a small local cafe attempts to go about its daily business, the heavy-handed attentions of the dairy giant have whipped trademark arguments into something akin to the froth on top of a good old-fashioned milkshake.
And another thing
Residents, sporting groups, local authorities - indeed the entire West and South Otago communities - are to be congratulated heartily for their vision and perseverance in building the Cross Recreation Centre in Balclutha.
The opening of the $5 million centre brings to an end one of the biggest community infrastructure investments in the area for many years.
Named after local businessman Blair Cross, and incorporating the Otago Daily Times Fitness Centre - in recognition of respective donations - the centre is already attracting interest and inquiries from a diverse range of organisations. For Balclutha, and surrounding districts, it seems to have been another case of "build it and they will come".
