Archive for April, 2008
« Older Entries | Newer Entries »Obtaining Judgment Requires Lawyer, But Not Settlement Agreement
Thursday, April 17th, 2008
Farouk Systems Inc. v. Rica International Inc. and Munesh M. Mavadia raises a procedural point, namely whether a corporation requires a lawyer to resolve an action before the Federal Court.
The personal Defendant sought an order for an exemption from Rule 120 of the Federal Court Rules (which requires all corporate Defendants to be represented by lawyers) so that he could sign the requested judgment in his personal capacity and as an officer of the corporate Defendant.
The case law under Rule 120 requires proof of special circumstances, namely impecuniosity, the complexity of the issues and whether the proposed representative might be a witness.
The Judge was not convinced that there was impecuniosity since the proposed judgment included a $24,000.00 payment. The legal issues as evidenced by the proposed judgment were also not simple.
More importantly, there was no need for the relief sought given that the personal Defendant could sign a settlement on behalf of the corporation in the same way he could execute any other contract, thereby precluding the need for a judgment.
Posted in Case Law | No Comments »
.CA Domain Name Registrations Reach 1 Million Milestone
Wednesday, April 16th, 2008
The Canadian Internet Registration Authority (CIRA) announced today that 1 million .ca domain names have been registered, indicating the increasing popularity of .ca domain name registrations. To register a .ca domain name, one must satisfy the Canadian Presence Requirements. The owner of a Canadian registered trade-mark, for example, would qualify to register a .ca domain name.
A blog posting of a .ca Registrar on Monday of this week indicated that the 1 million .ca domain registration mark had already been surpassed but had subsequently fallen slightly below the mark due to the number of domain expirations (which often exceed new registrations after the weekend.)
On a related note, a member of the Province of Quebec’s National Assembly is reported to have started a petition for ICANN to create a .qc domain name extension, to provide a distinct Quebec identity on the internet.
Posted in Domain Names | No Comments »
Trademark Confusion or Chalk and Cheese
Tuesday, April 15th, 2008
As the owner of a HÖRST brand shirt and a cyclist, I might be inclined to think there is a connection between HÖRST shirts and HORST WATERPROOF cycling bags. But I would fail to realize that HÖRST is a common German name and that I may not be a typical Canadian consumer.
A recent Québec case, Octeau et al v. Kempter Marketing Inc., illustrates that identical or similar names do not necessarily mean there is infringement, absent use in association with similar wares and for a similar purpose.
The Plaintiff had three registered Canadian trademarks, HÖRST DÜSSELDORF & Design, CULT HÖRST and H HÖRST & Design, for use in association with an extensive line of clothing. The Defendant manufactured and distributed sporting goods, including high-end cycling and ski products and introduced the HORST WATERPROOF, a waterproof cycling bag named in honour of Horst Kempter, the founder of the company.
The judge noted that there was no attempt by the Plaintiff to prove the Defendant was selling any product “comparable in either style, nature or purpose” to the Plaintiffs’ products. He also pointed out the absence of any evidence that the Defendant sold any product resembling a product produced and sold by the Plaintiff. There was also no evidence of any person drawing a connection between the Plaintiffs’ and the Defendant’s businesses.
The judge reviewed the test for confusion, noting the discussion in Mattel, Inc. v. 3894207 Canada Inc. (the Barbie case) that trademark law affords protection that transcends the traditional product lines, but the issue is whether confusion arises.
What the Plaintiff failed to prove was confusion. In Veuve Cliquot Ponsardin et al v. Boutiques Cliquot Ltée et al Justice Binnie concluded that “luxury champagne and mid-priced women’s wear are as different as chalk and cheese”, a comparison that also applies to HÖRST shirts and HORST WATERPROOF cycling bags.
Posted in Case Law, Protection & Enforcement | No Comments »