T-889-89
Mattel Canada Inc. (Plaintiff)
v.
GTS Acquisitions Ltd. and Nintendo of America
Inc. (Defendants)
INDEXED AS: MATTEL CANADA INC. V. GTS ACQUISITIONS
LTD. (T.D.)
Trial Division, Joyal J.—Toronto, August 8;
Ottawa, August 31, 1989.
Trade marks — Infringement — Application for interlocu
tory injunction to prohibit unauthorized sales of "Nintendo"
video games imported from U.S.A. — Plaintiff exclusive dis
tributor and registered user in Canada for Nintendo trade
mark — Lack of deception of public, in that genuine "Ninten-
do" wares being sold, not conclusive — Where registered trade
mark owner or user involved or issue of unfair competition
raised, other considerations i.e. effort and expenditures to
create market for product, appropriate — Trade Marks Act, s.
7(e), prohibiting anything contrary to honest industrial usage,
and s. 49(3), equating use by registered user with use by
registered owner for purposes of Act — Legislation designed to
create fairness in marketplace not to be used to legitimize
unlawful conduct.
This was an application for an interlocutory injunction to
prohibit the defendant, GTS Acquisitions Ltd. ("GTS"), from
selling video games and related equipment under a number of
associated trade marks, the main one being "Nintendo", for
which the plaintiff is the registered user and the exclusive
distributor in Canada. The distributorship agreement provides
for minimum annual guaranteed orders and sales. The plaintiff
has conducted a massive advertising campaign, and provides
extensive after-sales service, which has resulted in a tremendous
growth in sales. Sixty per cent of the plaintiffs revenue is
derived from the sale of these games. The defendant has been
importing video games from the U.S.A. bearing the Nintendo
trademark for distribution in Canada. The plaintiff alleged that
the infringing sales jeopardize its ability to meet its minimum
sales commitment, depreciates goodwill and causes confusion.
The action alleged trade mark infringement. The defendant
argued that an infringement action requires sales of wares in
association with a confusing trade mark, and that the test is one
of deception involving spurious goods. It further argued that
there was no infringement when the mark was used in associa
tion with the genuine goods supplied by the actual owner of the
mark.
Held, the application should be allowed.
Lack of deception of the public by the sale of any trade mark
owner's own goods is not conclusive of the issue. The Supreme
Court of Canada decision, Consumers Distributing Company
Ltd. v. Seiko Time Canada Ltd. et al., not only opened the door
to other considerations if a registered trade mark owner or
registered user is involved, but opened wider that same door to
other tests whenever some kind of unfair competition is raised.
The plaintiff exerted strong efforts and expended large sums of
money to create a market in Canada for Nintendo products.
Prima facie, subsection 49(3) (which equates the permitted
use of a trade mark by a registered user with the use thereof by
a registered owner for all purposes of the Act) afforded the
plaintiff some protection.
The Trade Marks Act regularizes the whole field of trade
mark ownership and incorporates therein the whole field of
unfair competition. Paragraph 7(e) (which prohibits anything
contrary to honest industrial usage) must mean that some kinds
of games should not be played in the marketplace. It would be
contrary to the intent and purpose of any legislative scheme
designed to create fairness in the marketplace for any person to
use that same legislation to legitimize his own unlawful
conduct.
As the defendant was selling a product under the plaintiff's
trade mark for which neither leave nor licence had been
obtained, the threshold test propounded in the American
Cyanamid case was satisfied. As to irreparable harm and
balance of convenience, the continuing unauthorized sales of
Nintendo products in Canada is injurious to the plaintiff's
business and goodwill. The ensuing losses will become increas
ingly difficult to quantify as more of these infringing products
appear on 'the Canadian market. The defendant has not
incurred any risk, nor has it invested any capital. It does not
have to keep or finance inventory. The Nintendo products do
not constitute the bulk of its sales, and should it wish to
continue selling Nintendo products it has an alternate source of
supply.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Trade Marks Act, R.S.C. 1970, c. T-10, ss. 7(e),
49(3),(4).
CASES JUDICIALLY CONSIDERED
APPLIED:
Consumers Distributing Company Ltd. v. Seiko Time
Canada Ltd. et al., [1984] 1 S.C.R. 583; 10 D.L.R. (4th)
161; (1984), 54 N.R. 161; 29 C.C.L.T. 296; 3 C.I.P.R.
223; 1 C.P.R. (3d) 1; Erven Warnink BY v J Townend Et
Sons (Hull) Ltd, [1979] 2 All ER 927 (H.L.); American
Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.);
CBM Kabushiki Kaisha v. Lin Trading Co. (1987), 10
C.I.P.R. 260; 14 C.P.R. (3d) 32; (1987), 9 F.T.R. 177
(F.C.T.D.); McCabe v. Yamamoto & Co. (America) Inc.,
[1989] 3 F.C. 290; 23 C.P.R. (3d) 498; 23 C.I.P.R. 64;
(1989), 25 F.T.R. 186 (T.D.); Remington Rand Ltd. v.
Transworld Metal Co. Ltd. et al., [1960] Ex.C.R. 463;
Dunlop Rubber Company Ld. v. A. A. Booth & Co. Ld.
(1926), 43 R.P.C. 139 (Ch.D.); Joseph E. Seagram &
Sons Ltd, v. Andres Wines Ltd. (1987), 16 C.I.P.R. 131;
16 C.P.R. (3d) 481; (1987), 11 F.T.R. 139 (F.C.T.D.);
Philips Export B.V. et al v. Windmere Consumer Prod
ucts Inc. (1985), 4 C.P.R. (3d) 83 (F.C.T.D.); Bollinger
(J.) v. Costa Brava Wine Company Ltd., [1959] 3 All
E.R. 800 (Ch.D.).
CONSIDERED:
Imperial Tobacco Co. of India v. Bonnan, [1924] A.C.
755 (P.C.); Revlon Inc. and Others v. Cripps & Lee Ltd.
and Others, [1980] 6 F.S.R. 85 (C.A.); Champagne
Heidsieck et Cie Monopole Société Anonyme v. Buxton
(1929), 47 R.P.C. 28 (Ch.D.).
COUNSEL:
K. W. Chalmers and Helen C. Walsh for
plaintiff.
John S. McKeown and Lesley M. Cameron
for defendants.
SOLICITORS:
Day Wilson Campbell, Toronto, for plaintiff.
Cassels Brock & Blackwell, Toronto, for
defendants.
The following are the reasons for order ren
dered in English by
JOYAL J.: The plaintiff applies for an interlocu
tory injunction pending trial of the issue to prohib
it the defendant GTS Acquisitions Ltd. from selling
certain video games and related equipment under a
number of associated trademarks for which the
plaintiff is the registered user in Canada. The
plaintiff contends that use of these marks by the
defendant constitutes an obvious infringement and
that from all the circumstances of the case, it is
proper for the Court to intervene at this stage of
the action.
The main trademark is "Nintendo". It is used in
association with video games, video game pro
grams and cartridges and video machines. The
mark is owned by Nintendo of America Inc. and
was registered in Canada in 1983 under No.
282,255. Other associated marks were registered
in 1988 and 1989.
Nintendo of America Inc. (Nintendo U.S.A.) is
the wholly-owned subsidiary of Nintendo Co. Ltd.
(Nintendo, Japan), the manufacturer of these
video games and related articles. Nintendo U.S.A.
is the exclusive distributor of Nintendo products in
North America and in 1986, appointed the plain
tiff as its exclusive distributor in Canada. The
appointment was for an initial period of three
years but has since been extended to July 30, 1992.
The agreement between the parties provides for
minimum annual guaranteed orders and for the
year April 1, 1989 to March 31, 1990, it calls for
minimum sales of some $50 million U.S. of Nin-
tendo products.
Since 1986, the plaintiff has conducted a mas
sive marketing and advertising campaign to pro
mote the sale of these products in Canada. By the
end of 1989, some $20 million will have been spent
on that item of the plaintiff's budget. The results
have been good. The plaintiff's sales have grown
from $5 million to $68 million in the course of
these years.
The games for Canadian distribution which are
manufactured and packaged in Japan in bilingual
form have imprinted on the packages and on the
instruction manuals and promotion material the
logo and trademark "Mattel". The games are sold
throughout Canada to mass merchandisers, na
tional toy specialty retailers, electronic specialists
and two sub-distributors, namely Beamscope
Canada and Bellevue Home Entertainment. The
sale of these games represents some 60% of the
plaintiff's revenues.
In addition to the games themselves and as part
of its marketing policies, the plaintiff extends a
90-day warranty against all defects, provides
access for customers to its qualified repair staff
and also provides telephone hot lines to render
assistance to customers in the operation of the
video games.
Until the end of 1988, the plaintiff enjoyed the
protection of its exclusive distributorship agree
ment with Nintendo U.S.A. The latter was of
course busy selling the same games in the U.S. but
it restricted its sales network to the U.S. and
prohibited its distributors and dealers from export
ing or selling video games for export from the U.S.
Several breaches, however, appeared early in
1989 when the plaintiff discovered that a "grey"
market was developing in Canada with respect to
these games through the purchase and importation
in Canada of U.S. games, all bearing the Nintendo
trademark. The plaintiff immediately took action
against several of these Canadian importers or
sellers, the defendant being one of them.
The defendant is a company with three owners
but no other employees. It was incorporated in
January, 1989 and shortly thereafter began to
import U.S. video games into Canada for distribu
tion here. According to the evidence, its U.S.
sources of supply appear to be mainly Colonel
Video, in Texas and Able Enterprises in Missouri.
The defendant also purchases U.S. Video games
from Phil's Video in Winnipeg.
In support of its application for an interlocutory
injunction, the plaintiff submits that unless that
kind of relief is granted to it, there will be no end
to the proliferation of U.S. video games on the
Canadian market. These games are hot items at
the moment, the result of course of the plaintiffs
massive advertising campaign and of its after-ser
vice programs. As registered user of the various
trademarks associated with its products, these
infringing sales not only risk putting it in default
of its minimum order undertaking with Nintendo
U.S.A., but severely depreciates the goodwill it has
created with respect to the marks. Already, plain
tiff says, there is confusion in the marketplace.
Customers for the product find that the packaging
and the instructional material is in the English
language only. Furthermore, as the warranty
associated with the Canadian video games do not
apply to the U.S. product, the plaintiffs hot lines
are kept busy explaining to the public that it
"cannot be held responsible for the U.S. video
games", a position which undermines the plain
tiff's credibility with respect to its warranties, its
after-service programs and its merchandising
policies.
The plaintiff urges the Court to conclude that
the situation meets the test laid down by the
House of Lords in the celebrated case of American
Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396
(H.L.), namely:
1. There is a serious issue to be tried, the plaintiff enjoying
exclusive right to the use in Canada of the Nintendo
trademarks;
2. the continuing sales of the U.S. video games by the defen
dant as well as by so many others is causing irreparable harm
which cannot be compensated in damages;
3. as the defendant can always buy the Canadian product, an
injunction at this stage would not drive it out of business and
therefore, the balance of convenience favours the plaintiff.
The case for the defendant is basically that its
sales in Canada of the Nintendo products covered
by the trademarks do not constitute infringement
under the terms of the Trade Marks Act [R.S.C.
1970, c. T-10]. The plaintiffs case, it says, rests on
its contractual rights with Nintendo U.S.A. of
which the importations into Canada might consti
tute a breach but such breach does not arise under
the statute nor is it enforceable against the
defendant.
The defendant submits that an action for
infringement under the Trade Marks Act rests
upon the sale, distribution, or advertisement of
wares in association with a confusing trademark.
The test is one of deception involving spurious
goods. On the facts of the case, there can be no
infringement if the mark is used in association
with the genuine goods supplied by the actual
owner of the mark.
With respect to the loss of goodwill, the defen
dant contends that the goodwill attaches to the
manufacturer, Nintendo, and not to the plaintiff.
As a consequence, and in accordance with the
Privy Council decision in Imperial Tobacco Co. of
India v. Bonnan, [1924] A.C. 755, the defendant
should be perfectly free under the Act to sell the
manufacturer's goods in Canada in competition
with the plaintiff, even though under contract, the
plaintiff is the manufacturer's sole distributor in
Canada.
Further, says the defendant, the plaintiff itself
has engaged in the past in the same kind of
practices as the defendant. The plaintiff, according
to the evidence, already has a record of importa
tions into Canada of U.S. video games. This
apparently occurred when Nintendo Japan could
not satisfy Canadian demand. As a consequence,
the plaintiff cannot assert irreparable harm, one of
the essential requirements under an interlocutory
injunction application.
The defendant argues that, in any event, any
damages which might flow to the plaintiff, if it
should succeed at trial, are easily compensable in
monetary terms. The defendant has already pro
vided the plaintiff with its sales to date of the U.S.
video games and would of course continue to keep
accounts.
Finally, the defendant states that the plaintiff,
as registered user of the trademarks, has failed to
comply with the expressed provisions of subsection
49(4) of the Trade Marks Act and that its action
on the case is untimely. As it turned out, that issue
was not seriously debated before me. I should find,
in any event, that the opening words of subsection
49(4) of the Act provides a full answer to that
technical requirement.
The Court must now come to terms with the
issue. It is noted in the case of Champagne Heid-
sieck et Cie Monopole Société Anonyme v. Buxton
(1929), 47 R.P.C. 28 (Ch.D.), at page 35, that the
exclusive right to use a mark conferred on a
proprietor is the right to use the mark as a trade
mark, i.e., as indicating that the goods upon which
it is placed are his goods and to exclude others
from selling under the mark wares which are not
his.
If the action before me were by the owner of the
Nintendo marks and if the only evidence be that
the defendant is selling a Nintendo product cov
ered by the trademark, there would be no case for
the owner. It would be somewhat ridiculous to
assert infringement or passing off when the
defendant is dealing with the owner's own wares.
There cannot be, in such circumstances, any
deception. The owner might have some cause of
action against the defendant based on contract on
grounds that the defendant is selling in a territory
prohibited to him, but such action, in my view,
could not be founded on deceit or deception.
In the Imperial Tobacco Co. case (supra) it is
stated, at page 762 that "There is nothing to
prevent a tradesman acquiring goods from a
manufacturer and selling them in competition with
him, even in a country into which hitherto the
manufacturer or his agent has been the sole impor
ter .... There is no untruth and no attempt to
deceive."
Substantially the same approach was adopted by
English courts in Revlon Inc. and Others v. Cripps
& Lee Ltd. and Others, [1980] 6 F.S.R. 85 (C.A.)
when in circumstances similar to the ones before
me, the Court of Appeal found that there is no
passing off when the actual trademark owner's
goods are being sold. If the sale be by an unau
thorized seller, that is a matter of contract, not of
infringement.
In a more recent Supreme Court of Canada
decision, Consumers Distributing Company Ltd. v.
Seiko Time Canada Ltd. et al., [1984] 1 S.C.R.
583; 10 D.L.R. (4th) 161; (1984), 54 N.R. 161; 29
C.C.L.T. 296; 3 C.I.P.R. 223; 1 C.P.R. (3d) 1,
Estey J., on behalf of the Court, provides us with a
detailed analysis of the traditional doctrine that
deception, i.e., selling one's goods as the goods of
another, lies at the core of any action for injunc-
tive relief. In the case before the Court, Consum
ers Distributing had been found selling Seiko wat
ches which had not been obtained from the
owner's exclusive Canadian distributor but from
offshore sources. After reviewing the facts, Estey
J. could not find that Consumers' action constitut
ed passing-off. The Seiko watches it was selling
were in fact the identical watch sold by the exclu
sive Canadian distributor and all of them, of
course, came from the same manufacturing source.
Furthermore, any possibility of confusion in the
minds of the public that the pattern of sale by the
Canadian distributor, including point of sale ser
vices, instruction booklet and properly endorsed
warranties, had been overcome by an earlier
injunction and damages and, as a consequence,
there was no longer an issue before the Court on
which "passing off" could be sustained.
Estey J., however, goes on to say at pages 597
S.C.R.; 172 D.L.R. et seq., that deceit or decep
tion, in selling one's goods as the goods of another,
no longer covers the field of injurious or tortious
conduct. The true basis is unfair competition, a
concept which must, of course, be interpreted in
balance with the avowed public interest in main
taining a free and competitive market. In essence,
as was said in the Champagne case of Bollinger
(J.) v. Costa Brava Wine Company Ltd., [1959] 3
All E.R. 800 (Ch.D.), at page 805:
... I think that it would be fair to say that the law in this
respect [i.e. passing-off] has been concerned with unfair compe
tition between traders rather than with the deception of the
public which may be caused by the defendant's conduct, for the
right of action known as a "passing-off action" is not an action
brought by the member of the public who is deceived but by the
trader whose trade is likely to suffer from the deception prac
tised on the public but who is not himself deceived at all.
Estey J. also quotes Lord Diplock, in the case of
Erven Warnink BV v J Townend Et Sons (Hull)
Ltd, [1979] 2 All ER 927 (H.L.), at page 931:
Unfair trading as a wrong actionable at the suit of other
traders who thereby suffer loss of business or goodwill may take
a variety of forms ... but most protean is that which is
generally and nowadays, perhaps misleadingly, described as
`passing-oft'. The forms that unfair trading takes will alter with
the ways in which trade is carried on and business reputation
and goodwill- acquired. [My emphasis.]
Finally, in concluding in the Seiko case that
Consumers had not committed an actionable
wrong, Estey J., at pages 612-613 S.C.R.; 184
D.L.R., feels obliged to observe that nothing had
been advanced by the respondent, the Canadian
distributor, with reference to rights which might
flow from being the owner or registered user of the
trademark "Seiko". Neither condition existing,
says Estey J., there was no need to confront an
earlier decision of the Exchequer Court in Rem-
ington Rand Ltd. v. Transworld Metal Co. Ltd. et
al., [ 1960] Ex.C.R. 463.
In this latter case, Thurlow J. [as he then was]
found in favour of an interlocutory injunction
pending trial with respect to the importation and
sale in Canada of certain electric shavers bearing
the plaintiff's registered mark "Remington", "Rol-
lectric" and "Princess". The shavers sold by the
plaintiff under these marks were manufactured for
it by its parent company in the U.S., Remington
Rand Electric Shaver Corporation, a division of
Sperry Rand Corporation. The defendant's shavers
were manufactured by the U.S. parent and also by
a German company bearing the name Remington
Rand. The evidence disclosed that the defendant's
shavers were, outwardly at least, identical with
those sold by the plaintiff.
Thurlow J., at page 464, says this: "Notwith-
standing the relationship between the plaintiff and
its United States parent corporation, the evidence
of use of the marks by the defendants in Canada,
in my opinion, shows a strong prima facie case of
infringement of the marks". In his finding, Thur-
low J. relies on Dunlop Rubber Company Ld. v. A.
A. Booth & Co. Ld. (1926), 43 R.P.C. 139 (Ch.
D.) and quotes Tomlin J., at pages 144-145:
The "Dunlop" tyre business is conducted under a system
whereby in different countries there are different Companies,
so that the English Company owns in this country a number of
Trade Marks and the French "Dunlop" Company in France
holds Trade Marks in France which are identical with the
English Trade Marks, and I gather that a similar condition of
affairs obtains in Italy and possibly in other countries. It
follows from that that a French "Dunlop" tyre having upon it
the Trade Marks which are identical with the English Trade
Marks cannot be imported for sale into this country without
infringing the English Trade Marks.
This review of case law indicates to me that the
lack of any deception on the public by the sale of
any trade mark owner's own goods is not conclu
sive of the kind of issue before me. The Seiko case
to which I have referred not only leaves the door
open to other considerations if a registered trade
mark owner or registered user is involved, but also
opens wider that same door to other tests whenever
some kind of unfair competition is raised. I need
only repeat here the comments of Lord Diplock in
the Warnink case (supra) that the forms of unfair
competition depend largely on the various ways
trade is carried on and business reputation and
goodwill acquired.
The facts of the case before me and which I
have already outlined can only lead to the conclu
sion that the plaintiff has exerted strong efforts
and expended large sums of money to create a
market in Canada for Nintendo products. The
plaintiff did this under the double protection of its
exclusive distributorship with Nintendo U.S.A.
and its exclusive registered user status under the
Trade Marks Act. This protection appears to have
been effective for some three years. It was only
when, through the plaintiff's efforts, Nintendo
became the hottest game in town that it started to
face the "grey" market penetration.
According to subsection 49(3) of the Act, the
permitted use of a trademark by a registered user
has the same effect for all purposes of the Act as
the use thereof by a registered owner. I should
think that prima facie such a provision affords the
plaintiff some protection.
Concurrently, and I refer again to Estey J.'s
comments in the Seiko case, the Trade Marks Act
not only regularizes the whole field of trademark
ownership but also incorporates therein and in
relation thereto the whole field, one might say the
whole minefield, of unfair competition. Section 7
of the statute establishes that quite clearly. If it
specifically provides in paragraph 7(e) thereof that
no person shall "do any other act or adopt any
other business practice contrary to honest industri
al or commercial usage in Canada", surely it is
intended that some kind of games should not be
played in the marketplace.
I need not make a definitive finding as to wheth
er or not the case before me involves something
short of honest commercial usage in Canada. If
lawfulness be the test of honest practices, it might
be quite unlawful for the U.S. sellers to export
Nintendo U.S.A. products to Canada but their
subsequent sale by the defendant to Canadian
consumers might pass the test. In such event, the
strong moral arm made evident in paragraph 7(e)
of the Act could not be extended to Texas or
Missouri dealers with the effect of ascribing to the
innocent acts of their Canadian purchasers the
obvious sins of their U.S suppliers.
In the case of CBM Kabushiki Kaisha v. Lin
Trading Co. (1987), 10 C.I.P.R. 260; 14 C.P.R.
(3d) 32; (1987), 9 F.T.R. 177 (F.C.T.D.), as well
as in the more recent case of McCabe v. Yamamo-
to & Co. (America) Inc., [1989] 3 F.C. 290; 23
C.P.R. (3d) 498; 23 C.I.P.R. 64; (1989), 25
F.T.R. 186 (T.D.); I ventured to suggest that
underlying the whole concept of the Trade Marks
Act is the fundamental principle that the statute
should never afford aid or protection to anyone's
unlawful activities. It would be contrary to the
intent and purpose of any legislative scheme to
create fairness in the marketplace for any person
to avail himself of that same legislation to counte
nance or legitimize his own unlawful conduct.
I cannot of course decide at the interlocutory
stage of these proceedings whether or not this
principle of legitimacy can be said to apply to the
case before me. I can only conclude that some
weight should be given to subsection 49(3) and
section 7 of the statute. As in the Dunlop Rubber
case (supra) and the Remington Rand case
(supra) the defendant is selling a product under
the plaintiff's trademark for which neither leave
nor licence has been obtained. This, in my view,
more than satisfies the threshold test propounded
in the American Cyanamid case and to which I
have earlier referred.
Having disposed of that issue, I need not go to
great lengths in dealing with the matter of irrepa
rable harm or balance of convenience. As my
findings of fact indicate, the continuing sales of
the Nintendo products in Canada by way of unau
thorized U.S. exportations is causing the plaintiff
injury to its business and to its goodwill. Should
more and more of these products find their way
into the hands of Canadian dealers, the result
would be a floodgate effect. The plaintiff's losses
would become increasingly difficult to estimate
and calculate. Nintendo products constitute a
large percentage of the plaintiff's business. The
commercial advantage which it now enjoys, an
advantage which was evidently gained by its own
heavy investments, would be continuously eroded
or substantially diluted.
As far as the defendant is concerned, it only
entered the market earlier this year. Its decision in
that respect is essentially the result of the plain
tiffs efforts in creating the market in the first
place. The defendant therefore has incurred no
risk nor does its venture into the field entail any
investment of capital. It does not have to keep or
finance inventory. It only orders from its U.S.
product sources on the strength of its own custom
er orders. The Nintendo products do not constitute
the bulk of its sales or even a substantial propor
tion of them. Furthermore, if it should wish to
continue supplying its people with Nintendo prod
ucts, it has, presumably, an alternate source of
supply.
Mr. Justice Cullen of this Court found similar
situations in the cases of Joseph E. Seagram &
Sons Ltd. v. Andres Wines Ltd. (1987), 16
C.I.P.R. 131; 16 C.P.R. (3d) 481; (1987), 11
F.T.R. 139 (F.C.T.D.), and Philips Export B.V. et
al v. Windmere Consumer Products Inc. (1985), 4
C.P.R. (3d) 83 (F.C.T.D.). He experienced no
more trbuble than did Thurlow J. in the Reming-
ton Rand case (supra) in finding for interlocutory
relief. I should reach the same conclusion. The
case before me is a proper one where an interlocu
tory injunction on terms, should be granted. An
order will go accordingly.
Costs shall be in the cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.