Canada: Motion to Set Aside Ex Parte Default Judgment Dismissed (Intellectual Property Weekly Abstracts Bulletin: Week Of August 20, 2012)

Last Updated: August 23 2012
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Other Cases of Interest

Motion to Set Aside Ex Parte Default Judgment Dismissed
Moroccanoil Israel Ltd. v. Laboratoires parisiens Canada (1989) Inc.

In January, the Federal Court granted default judgment to the Plaintiffs in an action for, inter alia, trade-mark infringement and passing off. The Defendants brought the within motion to set aside that Order and introduce a draft Statement of Defence. The Court dismissed the motion.

The Court discussed the history of the legal proceedings and then held that the Defendants had not met the test to set aside an ex parte Order. The Court considered the evidence submitted to support the Defendants' explanation for not filing a Statement of Defence and held that the evidence did not support the explanation. Furthermore, the Court held that the Defendants had not established they have a prima facia defence on the merits. Thus, the motion to set aside the default judgment was dismissed.

Default Judgment Not Set Aside Due to Defendant's Misrepresentations
Canadian Copyright Licensing Agency (Access Copyright) v. Three Cent Copy Centre Ltd.

The Defendants in this action brought a motion seeking a declaration that the default judgment should not be enforced against them, or, alternatively should be set aside. The Court dismissed the motion.

The motion was brought on the basis that the proper corporate name for the entity was not used. The Court held that it was the Defendants' counsel who advised the Plaintiffs of the proper name for the businesses. Furthermore, although the Plaintiff undertook corporate searches and could not locate that name for the business, they relied on the information provided by counsel for the Defendants and counsel for the Defendants understood that it was the activities at the two relevant places of business that were of concern to the Plaintiffs.

The Court held that it was disingenuous for the Defendants to now seek to have a default judgment set aside based on their own misrepresentations. As the only explanation for not filing a Statement of Defence was that they were not properly served and the Court held that this explanation was without merit given their active participation in providing the incorrect corporate name and failing to take any measures to correct misleading and incorrect information, the motion was dismissed. Similarly, the Court refused to relieve the Defendants of their personal liability.

Costs Award Takes Into Account Relative Success of Parties in Proceeding
Eurocopter (Société par Actions Simplifiée) v. Bell Helicopter Textron Canada Limitée

This decision concerned the costs to be awarded after the infringement action, which was decided in January of this year. Our summary of the infringement action can be found here. In that action, Eurocopter was successful in its suit for infringement of the Legacy gear while Bell was successful in its defence of infringement against its Production gear. Bell's counterclaim for invalidity was allowed in part; however, had no effect on claim 15 which was found to be valid and infringed by the Legacy gear.

The Court held that Eurocopter was more successful than Bell in the case and, thus, should be entitled to part of its costs. The Court considered arguments that more claims were found invalid than valid; however, dismissed this. Furthermore, the Court held there was no practical advantage in the invalidation of some of the patent claims as one claim was found valid and infringed.

The Court considered the factors relevant to the determining costs according to the Federal Courts Rules. The Court held that Bell is not entitled to any costs and that Eurocopter was entitled to its costs and disbursements; however, reduced those by fifty percent.

Application to Expunge Trade-mark Dismissed
Reynolds Consumer Products, Inc. v. P.R.S. Mediterranean Ltd..

This case is an application for an order striking out the Respondent's trade-mark. The Applicant's trade-mark is GEOWEB for use in association with webbing sheets for building roads and the Respondent's trade-mark is NEOWEB for use in association with the same sort of wares. The Court dismissed the Application.

The Court considered the evidence and held that a case can not be made out that a consumer in the market for GEOWEB's wares would think that NEOWEB's wares come from the same source. The Court held that the trade-marks were distinctive and would not likely lead to the inference that their products are manufactured or sold by the same person. The Court further held it was not the use of the trade-mark NEOWEB that might cause confusion but rather the advertising associated therewith and the remedy for that was not striking out the trade-mark pursuant to the Trade-marks Act. Thus, the Application was dismissed.

Other Industry News

Health Canada has published a Notice - Health Products and Food Branch (HPFB) International Regulatory Forum 2012.

CIPO has published a new schedule of fees for Patent Cooperation Treaty (PCT) Applications filed on or after September 1st, 2012.

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