TRADE MARKS |
Practice |
Natural Waters of Viti, Ltd. v. C.E.O. International Holdings Inc.
T-1335-99
Lafrenière P.
30/3/00
15 pp.
Motion by defendants for order striking Brio Beverages Inc. as co-plaintiff in action, striking claims for copyright infringement relating to label designs, striking paragraphs 1(f)(ii), 26(e) of statement of claim relating to alleged breaches of Trade-marks Act, s. 7(d)--On July 23, 1999, plaintiffs issued statement of claim alleging passing off of "Fiji" trademark, infringement of copyright--Product at issue bottled water--Natural Waters of Viti, Limited, based in Fiji, manufacturer, bottler of product--Plaintiffs submitting Brio proper party to present action in view of Trade-marks Act, ss. 7, 19, 20, 50, 53.2--Test governing striking of pleadings stated by Wilson J., writing for S.C.C. in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959--On motion to strike for want of reasonable cause of action, facts set out in statement of claim must be taken as proven--Party seeking to strike pleading must establish "plain and obvious" cause of action cannot succeed--Court must exercise great care in applying plain and obvious test--Generally, trade-mark that of manufacturer, not that of Canadian distributor--Right of licensee to bring passing-off action limited--Brio could not maintain action for passing-off under Trade-marks Act--Not having shared reputation, goodwill with Viti, let alone distinct goodwill in Viti's products--No allegation Brio "licensed by or with authority of " Viti as provided under Act, s. 50--Brio struck as party to proceeding--Pleading taken as whole disclosing reasonable cause of action--Motion allowed in part--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 7, 19 (as am. by S.C. 1993, c. 15, s. 60), 20 (as am. by S.C. 1994, c. 47, s. 196), 50 (as am. by S.C. 1993, c. 15, s. 69; c. 44, ss. 233, 236), 53.2 (as enacted by S.C. 1993, c. 44, s. 234).