Penthouse International Ltd. v. 163564 Canada Inc.
T-1479-93
Teitelbaum J.
31/10/94
8 pp.
Application for summary judgment against defendants under R. 432.1 -- Plaintiff registered owner of Canadian trade marks "Penthouse," "Penthouse Forum" -- Defendants using name "Bar Penthouse-1" in association with operation of adult entertainment club -- Summary judgment may be granted on "supporting affidavit material or other evidence" -- Statement of claim, statement of defence cannot be considered as "other evidence" under R. 432.2(1) -- Words "other evidence" refer to "other evidence" in file and to discovery evidence or evidence brought before Court as result of cross-examination of affiants -- Defendant Wilson having no relationship with defendant 163564 Canada Inc. since June 4, 1991 as all interest in numbered company sold -- Application for summary judgment against defendant Wilson dismissed -- No genuine issue for trial -- No disputed issues of fact -- Defendants not disputing use of plaintiff's trade mark "Penthouse" -- Said use being for "strip bar" could lead to confusion, have detrimental effect on plaintiff's goodwill -- That defendants use "Penthouse" trade mark for "bar" and plaintiff uses trade mark for magazines of no consequence -- Evidence of actual confusion not needed-Application allowed -- Federal Court Rules, C.R.C., c. 663, RR. 432.1 (as enacted by SOR/94-41, s. 5), 432.2(1) (as enacted idem).