Mascot International v. Harman Investments Ltd.
T-2315-92
Teitelbaum J.
5/1/93
26 pp.
Application for interlocutory injunction restraining defendants from infringing plaintiffs' copyright, importing, distributing or selling ornamental items, passing off and causing confusion -- Plaintiff Mascot International Inc. manufacturing and selling ornamental items made of gold-plated metal and crystal -- Defendants importing into Canada and selling ornamental items including designs of butterflies, hummingbirds, owls and eagles -- Notice of motion filed by defendants to strike out statement of claim as disclosing no reasonable cause of action -- Notice of motion by plaintiffs to amend statement of claim -- Defendants objecting to application to amend -- Filing of amended statement of claim allowed against both defendants -- Application to strike moot -- Principles set out in Turbo Resources Ltd. v. Petro Canada Inc., [1989] 2 F.C. 451 (C.A.) with respect to interlocutory injunction applied herein -- Plaintiffs must show arguable case, serious question to be tried -- Defendants' argument raising difficult questions of law, conflicts of evidence, matters to be dealt with at trial -- Plaintiffs having established claim for alleged copyright infringement neither frivolous nor vexatious, serious issue to be tried -- Injunction against passing off granted only if plaintiffs' items have acquired secondary meaning within market, namely shape of wares, distinguishing guise or get-up representative of wares of plaintiffs -- Requirement met herein -- Likelihood of confusion in overall impression left in consumer's mind -- Plaintiffs having demonstrated threshold case of passing off against defendants under Trade-marks Act, s. 7(b), (c) -- Burden of establishing irreparable harm on plaintiffs -- Evidence used to support allegation of irreparable harm must be clear and not speculative -- Court must be satisfied plaintiffs would suffer irreparable harm not compensable in damages if interlocutory injunction refused -- Evidence establishing irreparable damage to plaintiffs' reputation and goodwill, associated with products, if interlocutory injunction not granted -- Defendants' products of lesser quality, degrading goodwill of plaintiffs' products -- Plaintiffs' reputation and goodwill developed over number of years -- Undertaking to pay damages not provided by defendants -- Irreparable damage to plaintiffs' reputation not compensable in damages if interlocutory injunction refused -- No evidence of irreparable harm to defendants if injunction granted -- Balance of convenience favouring plaintiffs -- Application granted -- Trade-marks Act, R.S.C., 1985, c. T-13, s. 17(b), (c).