Guess?, Inc. v. Nifty Gifts, docket T-2437-92

Date: 20000928

Docket: T-2437-92

Ottawa, Ontario, this 28^th day of September 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

     IN THE MATTER OF ss. 52 and 53 of the

Trade-marks Act, R.S.C. 1985, Ch. T-13

BETWEEN:

GUESS?, INC. and STRANDEL INC.

Plaintiffs

and

NIFTY GIFTS, N.H. HASHMI, TROPICANA GIFTS & NOVELTIES LTD., CONCEPT FUN WEAR, MARIA MIONG, JOHN DOE and JANE DOE and OTHER PERSONS UNKNOWN TO THE PLAINTIFFS WHO OFFER FOR SALE, SELL, IMPORT, MANUFACTURE, ADVERTISE, OR DEAL IN COUNTERFEIT GUESS APPAREL

Defendants

REASONS FOR ORDER AND ORDER

[1]      On June 8, 2000, I made an order pursuant to a Notice of Status Review in which I asked that counsel advise of the defendants against whom the plaintiffs intend to proceed. I have now received submissions in that regard.

[2]      There will be an order continuing the action as a specially managed proceeding as against the individuals named in the submissions made by counsel except for the defendants Aprea (Defendant No. 1) and Modern Culture Inc. c.o.b. as The Rave (Defendant No. 2). These individuals were served in November 1992. These claims are stale and will be dismissed for delay. The order will incorporate terms discussed in Tag Heuer S.A. v. John Doe, [2000] F.C.J. No. 1362.

ORDER

1-      These proceedings are continued as specially managed proceedings with respect to the following defendants:

         Active List

Group 1: Default Judgment

Defendant Name                  Defendant Schedule No.

         Resty Lagman                      228

Hamid Khan Pathan                      294

Manjeet Kaur                           295

         1052146 Ontario Inc. c.o.b. Classic G. Touch      296

         Niyae Sarup Sharda                      297

         Himat Singh                          298

         Hahn Nguyen                           302

         Just Sportswear                      303

         Rebec Garcia                          304

         Susan Dodds                          305

         Manjit Singh Pannu                      306

         Ram Singh                          307

         Group 2: Summary Judgment

Defendant Name                  Defendant Schedule No.

         Raymond Y. Chong                  74

2a)      The claims against all other defendants not named in paragraph 1 and against whom the plaintiffs have not obtained a final order or filed a Notice of Discontinuance are hereby dismissed for delay.

2b)      The plaintiffs shall serve a copy of this order upon the defendants against whom the claim has been dismissed for delay by regular mail at the last known address for such defendants or by leaving a copy at the premises where the order was executed. If no claim is made for the return of the property seized from a defendant within 10 days from the date of service of this order, the plaintiffs shall be at liberty to destroy or otherwise dispose of the property seized. If a claim is made for the return of the property and it cannot be settled, the matter shall be brought before the Case Management Judge.

3-      The plaintiffs shall conclude proceedings against the defendants in Groups 1 and 2 within 90 days of the date of this order. Such motions or other proceedings may be brought before any Judge of the Court.

4-      No further defendants shall be added to this action without leave of the Case Management Judge, such leave to be obtained prior to the execution of the Anton Piller Order against such proposed defendants.

5-      For the reasons set out in Tag Heuer S.A. v. John Doe, [2000] F.C.J. No. 1362, the plaintiffs shall undertake such further enforcement activity as they see fit pursuant to a fresh Statement of Claim and a fresh Anton Piller Order.

6-      For greater certainty, proceedings with respect to a fresh Statement of Claim and a fresh Anton Piller Order may be taken before any Judge of the Court.

     "J.D. Denis Pelletier"

     Judge