The Federal Court of Appeal has upheld a default judgment
against the appellants, where findings of trademark infringement,
passing off, depreciation of goodwill and communication of false
and misleading statements were established.
The Court of Appeal held that the decision to proceed with the
merits of the motion was discretionary, and the discretion was
reasonably exercised. Despite having notice of the motion, the
appellants did not file a responding motion record nor did they
cross-examine on the affidavits.
The corporate defendant did not retain counsel or seek relief
from Rule 120 of the Federal Courts Rules. The decision to require
the compliance with the Rules was upheld, as was the decision to
not allow the personal defendant to give oral evidence on return of
the motion. The remedies that were awarded were upheld as being
reasonable and within the Court's jurisdiction.
Lastly, the Court of Appeal refused to accept what was
characterized as an aid to argument, but that the panel described
as a fresh 30 page memorandum of argument that had not been
delivered to respondent's counsel.
Appeal of a decision to not bifurcate a s.8 action and
infringement counterclaim dismissed
The appeal of a Prothonotary's decision to refuse to
bifurcate liability and quantification of an action comprising a
claim pursuant to section 8 of the PM(NOC) Regulations and a patent
infringement counterclaim has been dismissed.
The Court found that although one could have arrived at the
opposite conclusion, to find fault with the Prothonotary's
process would amount to a reweighing of the evidence, subverting
the high degree of deference owed to a discretionary decision of a
The Canadian Intellectual Property Office has issued a report entitled IP Canada Report 2016, discussing trends in IP use domestically, and by Canadians abroad, based on analysis of CIPO's internal data and those collected by the World Intellectual Property Organization.
The value of reliance on a trade-mark registration, as opposed to prior use, stands out sharply in the recent Federal Court of Appeal case of Pizzaiolo Restaurants Inc. v. Les Restaurants La Pizzaiolle Inc. ( 2016 FCA 256 October 28, 2016).
This is an appeal from the Federal Court's decision setting aside the Registrar of Trade-marks decision to the extent that it dismissed the applicant's opposition regarding the mark PIZZAIOLO and Design.
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