Canada: Federal Court of Canada Grants Order Permitting Seizure of Defendant’s Goods Before Trial in Copyright Action

First Use of Recent Amendment to Copyright Act
Last Updated: August 27 2002

By Steven B. Garland & Dennis S.K. Leung, Ottawa

Originally published in June, 2002

In Diamant Toys Ltd. v. Jouets Bo-Jeux Toys Inc. 2002 FCT 384 ("Diamant"), the Federal Court–Trial Division relied for the first time upon a recent addition to the Copyright Act (the "Act") and ordered allegedly infringing goods to be seized prior to trial. Accordingly, this amendment to the Act may now constitute a significant armament in copyright owners’ ongoing war against infringement of their works in Canadian court proceedings.

The new provision of the Act provides for the seizure prior to judgment of copies of the defendant’s impugned works that are alleged to infringe the plaintiff’s copyright, without requiring the plaintiff to demonstrate compliance with the standard tri-partite test for interlocutory injunctive relief. The plaintiff need only establish a prima facie case of copyright infringement in respect of the works.

The dispute in Diamant centered on the assets of AMAV Industries Ltd., a Canadian manufacturer of a line of children’s arts and crafts products. Recently, AMAV’s parent company encountered financial difficulties, causing AMAV to sell off its assets to several companies, among them Diamant Toys and Jouets Bo-Jeux Toys.

The defendant, Jouets Bo-Jeux Toys, purchased a number of AMAV’s capital assets and some inventory. The plaintiff, Diamant Toys, alleged that it had acquired all of AMAV’s intellectual property, including copyright, in the relevant product line. The intellectual property at issue included thousands of illustrations and photographs used on the AMAV packages and instructions that were compiled in approximately 900 CD-ROMs, which were also purchased by the plaintiff.

The defendant began to market its own line of arts and crafts products that, the plaintiff alleged, infringed Diamant Toys’ copyright in the illustrations and photographs. The plaintiff sued in the Federal Court, alleging copyright infringement and passing off.

In late December, 2002, the plaintiff’s motion for seizure before judgment came on for argument before Mr. Justice Nadon of the Federal Court–Trial Division. On April 5, 2002, he issued an order granting seizure before judgment of goods from the defendant’s warehouse and from four retailers supplied by the defendant.

It is anticipated that this remedy will be available in those provincial jurisdictions, including Ontario, that permit seizure before judgment.

François Guay of our Montreal office and Steven Garland and Dennis Leung of our Ottawa office represented the plaintiff, Diamant Toys Ltd., in the above-noted matter.

Steven B. Garland is a partner & Dennis S.K. Leung is an associate with Smart & Biggar / Fetherstonhaugh in Ottawa.

Smart & Biggar is Canada’s largest firm practising exclusively in intellectual property and technology law. With offices in Ottawa, Toronto, Montreal, Vancouver and Edmonton, we offer a full range of intellectual property and technology law services. Related to Fetherstonhaugh through common partners, offices and personnel, we have a national and international reputation for the quality of our work and the calibre of our professionals.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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