Cheesecake Factory Inc. v. 9092-1651 Quebec Inc., 2004 FC 628

Date: 20040428

Docket: T-1933-03

Citation: 2004 FC 628

Montréal, Quebec, the 28th day of April, 2004

Present:           Prothonotary Richard Morneau

BETWEEN:

THE CHEESECAKE FACTORY INCORPORATED

and

THE CHEESECAKE FACTORY ASSETS CO LLC.

                                                                                                                                             Plaintiffs

                                                                           and

                                                        9092-1651 QUÉBEC INC.

(doing business as "RESTAURANT ELIXOR")

                                                                                                                                           Defendant

Motion on behalf of the defendant for:

1.          Striking out paragraph 9 of the Statement of Claim in its entirety without leave to amend pursuant to Rule 221(1)(a) on the basis that the allegations contained in paragraph 9 of the Statement of Claim do not disclose a reasonable cause of action and are otherwise outside the jurisdiction of this Honourable Court;

2.          Requiring the plaintiffs to furnish particulars, pursuant to Rule 181, of the specific embodiments of all the asserted artistic works itemized in paragraphs 6(a) and 6(b) of the Statement of Claim;

3.          Such further and other order which this Honourable Court may deem just;

4.          Costs to the defendant in any event of the cause.

                                            REASONS FOR ORDER AND ORDER

[1]                On the request for particulars made by the defendant against paragraphs 6(a) and (b) of the plaintiffs' statement of claim, that application must be dismissed since I consider that the comparison exercise contained in Exhibit C of Mr. Greathouse's affidavit, dated April 21, 2004, in connection with the photographs to be found at Exhibit B of Ms. Paulhus' affidavit dated April 23, 2004, provides the defendant with more than sufficient information of what he is alleged to have made copies of, so that the latter may now submit a coherent defence.

[2]                The application to strike paragraph 9 of the said statement of claim must also be dismissed, since as stated by the plaintiffs this paragraph is not intended to support a cause of action for infringement of trade marks or unfair competition, simply to support aspects of the plaintiff's cause of action under the Copyright Act, R.S.C. 1985, c. C-42.

[3]                The defendant's motion is accordingly dismissed with costs.

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

                                                             FEDERAL COURT

                                                     SOLICITORS OF RECORD

DOCKET:

STYLE OF CAUSE:

T-1933-03

THE CHEESECAKE FACTORY INCORPORATED

and

THE CHEESECAKE FACTORY ASSETS CO LLC.

                                                                     Plaintiffs

and

9092-1651 QUÉBEC INC. (doing business as "RESTAURANT ELIXOR")

                                                                  Defendant

PLACE OF HEARING:                                Montréal, Quebec

DATE OF HEARING:                                   April 26, 2004

REASONS FOR ORDER:                          Richard Morneau, prothonotary

DATED:                                                          April 28, 2004

APPEARANCES:

SOLICITORS OF RECORD: