Questions Ordered to be Answered on Appeal, and no
Decision on Bifurcation Until After Plaintiff Makes Election of
Damages or Profits This is a trademark case regarding the plaintiff's YELLOW
TAIL & KANGAROO DESIGN. Constellation Brands brought two
interlocutory motions before the Federal Court. First was an appeal
from an order (2015 CF 263) requiring its representative to answer
certain questions put to him on discovery. Second was a request for
a bifurcation order to proceed on the merits only, with a
subsequent reference for damages or profits if necessary. The Court declined to overturn the first order, as it was a
discretionary order that was not clearly wrong, and the result
would have been the same even if it were to be considered de
novo. The questions dealt with profits and expenses, and the
provenance of the grapes used to make the defendant's
wines. As for bifurcation, examinations for discovery were almost
complete and the plaintiff had yet to elect for either an
accounting of profits or damages. The Court was therefore not
prepared to bifurcate at this time. Consent to the Use of Copyrighted Material Not Required
to be in Writing The plaintiff sought partial summary judgment for an alleged
breach of the Copyright Act. It related to the alleged use
of copyrighted materials during the marketing phase of a
residential construction project. The plaintiff argued that there
was a legal requirement that a licence to use copyright material
must be made in writing. However, the Court found that the
statutory writing requirement only applies to conveyances of an
interest in the copyright itself, and not merely to consent to the
use of copyrighted material. As a result, the partial summary
judgment motion was dismissed and $29,719 in substantial indemnity
costs was awarded against the plaintiff. Infringement of Work Found Where Newspaper Published
Article Using Artwork Without Consent The plaintiff sued in Quebec Small Claims Court for breach of
copyright against a newspaper owner who published an article about
the plaintiff. Although the article was intended to be laudatory,
the plaintiff was never contacted for the piece, and her artwork
was used as a part of the article without her permission. The Court
awarded $750 for the breach of copyright. The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Trademark Cases
Casella Wines PTY Limited v. Constellation Brands Canada, Inc.,2015
FC 403Copyright Cases
King David Inc. v. Andrin Investment Ltd.,
2015 ONSC 1935
Donglu v.Sinoquébec Media Inc.,2015 QCCQ 2337
ARTICLE
9 April 2015
Questions Ordered To Be Answered On Appeal, And No Decision On Bifurcation Until After Plaintiff Makes Election Of Damages Or Profits (Intellectual Property Weekly Abstracts Bulletin (Week Of April 6, 2015)
This is a trademark case regarding the plaintiff’s YELLOW TAIL & KANGAROO DESIGN. Constellation Brands brought two interlocutory motions before the Federal Court.