A Federal Court decision on a procedural point is apparently just one more step in a larger legal battle, according to an article entitled “Despite lawsuit, restaurateur tries again under a new name, familiar format” in the March 29, 2008 edition of the The Globe and Mail.
In Mövenpick-Holding v. Inter Management Services Limited et al. the Federal Court judge agreed with the prothonotary’s decision dismissing the Plaintiff’s, Mövenpick-Holding’s, motion for particulars and to strike certain paragraphs of the defence and counterclaim, noting that a discretionary order of a prothonotary ought not to be disturbed on appeal unless it is clearly wrong, having been based on a wrong principle or misapprehension of the facts.
Mövenpick-Holding brought the action alleging violation of its MARCHÉ trademarks covering restaurant services after the Defendant company and its principles, the Reicherts, opened a restaurant under the name and trademark, INNISFIL HEIGHTS MARCHE, set up like a “marché” or market, where customers visited various food stations, a system allegedly similar to the Plaintiff’s.
The Defendant company went into bankruptcy, but Mövenpick-Holding obtained an order allowing it to continue the Federal Court action.
The paragraphs at issue on the application explained that the Defendants had never used MARCHÉ alone and alleged, among other things, that the MARCHÉ trademarks were not registrable and that “marché” is commonly used by persons operating market-style businesses.
The judge saw no reason to require particulars, agreeing with the prothonotary that “nothing indicates that the Plaintiff would have difficulty understanding the case it has to meet”. With regards to the motion to strike the judge also agreed that motions to strike should address “only the propriety of factual allegations, not the points of law” and the facts by the Defendants alleged were relevant. With regards to the allegations of fraudulent misrepresentation, those were also allowed to stand, since they went to whether the registrations were valid and not to whether the Defendants intended to prove fraud against the Plaintiff, which the Defendants confirmed was not the case.
According to The Globe and Mail, the Reicherts had at one time operated fifteen Movenpick restaurants owned by Richtree Inc., but agreed to leave Richtree Inc. after it encountered financial problems. Richtree Inc. went into bankruptcy and the Reicherts opened Innisfil Heights Marche, leading to the Federal Court action. Now that the Reicherts’ company, Inter Management Services Limited, is bankrupt, the Reicherts intend to open under a new name, North 400, but maintain the market-style format. Whether the Federal Court action proceeds further remains to be seen, but evidently the Plaintiff sees reason to protect the MARCHÉ marks and market-style concept.