Two Auckland business owners have a very good reason to cry over Spilt Milk.

One's a milkshake and coffee truck parked in Epsom, the other a cafe which serves Vietnamese food in Pt Chevalier.

They are both called "Spilt Milk" and are in the midst of a legal challenge over who gets to keep the name.

Calum Dykes, 22, who started his mobile business last year claims he discovered the other business was using the same name months after he started using it.

Dykes, who's truck is normally set up on Kohia Terrace, Epsom, claims he has proof he started using the name in October when he emailed a brief to a graphic designer for marketing.

"It's an interesting name, it gets you thinking. It's very relevant to milkshakes and coffee."

On May 5 Dykes was officially registered by Auckland Council under the name Spilt Milk. However he neglected to trademark it as he wanted to use the $150 registration fee for other expenses like equipment.

He said a customer asked him in July if he was opening a cafe in Pt Chevalier.

"They showed me the [other business'] Facebook page and I immediately shat bricks and felt a massive pit forming in my stomach.

"I naively assumed I wouldn't need to defend my name to protect my rights to use my intellectual property."

On May 12, the Pt Chevalier cafe announced their name on Facebook and registered a trademark on May 30.

Dykes advised the cafe in early July to change their name before they opened on August 1.

Then on July 28 their intellectual property lawyer Laura Carter wrote to Dykes saying they didn't consider him to have prior rights to the name.

Dykes has submitted a trademark opposition to the Intellectual Property Office. He estimates the whole process will cost at least $1700 in legal fees. Dykes, who took out a $20,000 loan to start his milkshake truck, said that amount of money is crippling to a small business.

"It is a very expensive process, in terms of monetary, emotional and mental costs."

The Pt Chevalier cafe don't sell milkshakes, said Dykes.

"That was the salt in the wound, their focus is more on coffee tonics and they do mainly Vietnamese food. For me who's making milkshakes and coffees to have to give up my name Spilt Milk to someone who is very vaguely associated with milk as a product. It's almost insulting."

The owner of Spilt Milk in Pt Chevalier Rakesh Mistry declined to comment. But his lawyer Laura Carter said that if they were forced to rebrand now it could seriously damage their "fledgling business".

"They had no knowledge of Mr Dykes, or any use of a Spilt Milk brand before they chose it for their café."

Intellectual property lawyer Jason Rudkin-Binks said if you're going to stop someone getting their trademark you have to prove you've got sufficient reputation to do so, or that the market place by the two brands is confused.

"If he's already got someone who's confused they're like gold dust."

Rudkin-Binks said both the cafe and the food truck would be able to keep their name no matter the outcome of Dykes' trademark objection.

Dykes was already using the name so could keep it even if he lost the legal argument. If he did win then the cafe would be denied their trademark but it didn't stop them using the name. To get them to give up their name he would have to take it to court which could cost "tens of thousands" said Rudkin-Binks.


Registering a trade mark

By registering a trade mark you get the exclusive right to use the term or symbol to promote the goods and/or services it covers. It costs $150 per class to apply for a trade mark and $350 per class to renew it every 10 years.

A good trade mark distinguishes and adds value to your business. You can sell or assign the trade mark to another entity, or license its use to other parties.

The two companies with the beer Budweiser have perhaps had the longest trade mark battle in history. Since 1907 the two companies have been involved in more than 100 court cases. Beginning around 1200AD people have brewed a beer called budweiser in the Czech Republic city of České Budějovice. American brewer Anheuser-Busch started marketing his Budweiser to North America in 1876. State owned brewery Budweiser Bier Bürgerbräu was founded in 1895.

Ugg boots have had their trade mark disputed as UGG is a registered trade mark of Deckers Outdoor Corporation. When Deckers tried to stop other brands from using the term "ugg" in the early 2000s 20 Australian manufacturers formed the Australian Sheepskin Association.

They fought the claim and won, arguing that "ugg" is a generic term referring to flat-heeled, pull-on sheepskin boots.