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A few years ago the people who care about the economic future of the area west of Brickell Avenue sat down to consider a catchy new name for their neighborhood of bistros, barber shops, and dry cleaners. Sitting around a conference table, they brainstormed possible new monikers: Brickell Commons. West Brickell. Finally they settled on the name by which the area is commonly known today: Brickell Village.
Antonia Gerstaker took the name and ran with it. The 28-year-old artist worked at the time in a studio next to the venerable bar Tobacco Road. She tried to help the neighborhood prosper, she says, by entering into a series of verbal contracts with the Downtown Development Authority (DDA), a quasi-autonomous agency of the City of Miami. One project involved painting the Miami Avenue bridge in her colorful, naive style, which an associate of hers describes as a "youthful Grandma Moses." Another was to paint a Brickell Village mural on a chest-high concrete wall along SE Ninth Street at Miami Avenue.
Lots of pinstripe-suited sharks released from Brickell Avenue law offices pass the wall on their way to power lunches of baked ziti and sparkling mineral water. In September 1996 Gerstaker painted the wall peach, as instructed by the DDA, and decorated it with five simple green-and-brown palm trees. If one of the lawyers were to stop mumbling about "tortious interference" or "preponderance of the evidence" long enough to really look at the wall, he might notice the ghostly remnants of block letters. The letters, obscured by a second layer of peach paint, spell out the neighborhood name Gerstaker was explicitly hired to promote: Brickell Village.
Who painted over the letters remains a mystery. Gerstaker certainly didn't; she assumes it was someone with the City of Miami, because a city barricade warned pedestrians about the wet paint. An assistant Miami city attorney speculates that it may have been a property owner who didn't like the artwork. Stuart Berry, a SunTrust vice president who helped come up with the Brickell Village name, admits that Gerstaker's palm trees did not jibe with the vision he and others have for the neighborhood. "I don't think it was the best representation of the image we were trying to project," Berry allows.
Counters Gerstaker: "They didn't know what they were trying to project. "[DDA director Patricia Allen] got me involved, saying she wanted everything to look very SoHo New York. [Stuart's group, the Brickell Area Association] wanted something else, and I became a Ping-Pong ball between them."
Compounding the insult of the paintover, Gerstaker says she was never paid by DDA for her labors, which she valued at $8000. She claims the time and effort she expended trying to collect on the wall project, and to enforce the contract for the Miami Avenue bridge (which she never painted), crippled her Tobacco Road studio, which she eventually closed. In a desperate attempt to recover some money, she adopted an aggressive and novel strategy: She seized the Brickell Village name.
Records on file at the Florida Secretary of State's office show that on September 13, 1996, Gerstaker incorporated "Brickell Village, Inc.," an entity of which she was the sole director. Then in March 1997 she obtained a trademark on the name Brickell Village and the palm tree logo. Berry and his volunteers had never legally protected the name, he says, because they wanted everyone to be able to use it as part of their businesses. Gerstaker contends that was a mistake. "There was a loophole and I caught their loophole," she boasts. "From my understanding, in Florida, as long as you have the incorporation nobody can use the name. I'm not a lawyer, though."
George Wysong is a lawyer, for the City of Miami. He met with Gerstaker soon after she filed for trademark protection. She wanted to complain about her alleged mistreatment by DDA, and she wanted to spring her surprise on him. "I was flabbergasted when she told me she had incorporated herself," he recalls. "I did some quick research and informed her that it was my opinion that someone can't incorporate what is already a geographic entity." The name, he says, describes not a business but an entire development zone. In addition, it was already in use by the DDA and by restaurants such as the popular Perricone's Marketplace, where "Brickell Village" appears on the menu and on souvenir hats and shirts.
Obtaining a trademark on Brickell Village strikes him as the equivalent of a trademark on the name City of Miami. "I don't think she stands any chance of success in [defending her trademark]," he opines. "I hate to say anything declarative like that, because there's always some lawyer out there who will go, 'Oh, yeah!?!' But I'm rather confident.
"Do you know how much money she's asking for?" Wysong adds. "Seven hundred fifty thousand dollars. I believe she claims $500,000 for the name infringement itself."
"That's what I put, but it's negotiable," Gerstaker admits, referring to her initial request for damages. "I know for a fact that I can't get that, but I had to do something so [Wysong] would sit down and listen to my story. You know, whenever you're negotiating a deal, you bid so much higher than what you actually seek."