O’BRIENS SANDWICH Bars has settled its legal action over the use of the company’s logo by a franchisee whose premises was temporarily closed because cockroaches were found in it.
Under the settlement of the action by O’Briens against Mark Smartt, who formerly operated an O’Briens outlet on the first floor of St Stephen’s Green Shopping Centre, Mr Smartt has undertaken not to use the company’s trademarks and logos.
Mr Smartt has also promised not to operate any rival business within a one-mile radius for a year, other than an existing outlet he runs in Brown Thomas department store.
The action followed the alleged failure of Mr Smartt, of Castleknock, to comply with hygiene and public health requirements under the franchise agreement he signed with O’Briens to operate the outlet since June 2003.
Last December, O’Briens obtained a temporary injunction requiring him to discontinue the use of its trademark and not to use signs, cards, notices and other displays related to it. The managing director of O’Briens, Fiachra Nagle, claimed in an affidavit that the action came about as a result of inspections by the company in June, July and August of last when, he said, the premises “was found wanting in several regards particularly in relation to hygiene and cleanliness”.
Opportunities were given to remedy the problems but, on October 17th last year, the HSE issued a temporary closure order because of the likelihood of “a grave and immediate danger to public health”, Mr Nagle said. The specific reason, as stated in the order, was the “presence of cockroaches in the premises”, Mr Nagle added.
O’Briens brought a claim for damages, loss of income and goodwill and sought a court order that the franchise agreement with Mr Smartt had been lawfully terminated. It also sought injunctions preventing him from using the O’Briens trademark or competing with the company.
Mr Smartt denied he had breached the franchise agreement and said the closure order, which was rescinded after a week, was not in any way attributable to neglect or breach of duty on his part. He also contended that if there was any infestation, it was not sourced from within his premises and had occurred even though he had taken all appropriate measures advocated by pest control experts.
In a counter-claim, Mr Smartt said O’Briens had wrongfully terminated the franchise agreement, causing loss, damage and distress.
The full trial of the action by O’Briens against Mr Smartt, and of the the counter-claim, was due to begin yesterday.
However, following discussions between the parties, John Trainor for O’Briens, told the court that terms of settlement had been agreed between the parties and the matter could be struck out.
Mr Justice John Edwards said he would make a declaration that O’Briens had lawfully terminated its agreement with Mr Smartt on the basis of written undertakings in the terms of settlement.
These included that Mr Smartt would continue to desist from using trademarks and signs and that he would not compete with O’Briens within a one mile radius of Stephen’s Green for a period of a year from the ending of the franchise agreement, with the exception of the Brown Thomas outlet.
By agreement of the parties, the judge also vacated all previous orders as to costs and granted liberty to O’Briens to apply to the court should the terms of the settlement not be complied with. He struck out the claim and counter-claim.