Date: 19990723
Docket: T-1065-99
BETWEEN:
R.S.M. INTERNATIONAL ACTIVE WEAR INC.
Plaintiff
- and -
NIAGARA UNITED ENTERPRISES LIMITED
JOHN DOE
JOHN DOE INC.
Defendants
REASONS FOR ORDER AND ORDER
EVANS J.:
[1] The plaintiff"s motion for an Anton Piller injunction authorizing the seizure of allegedly infringing goods from the retail store or stores owned by Niagara United Enterprises Limited in Niagara Falls, Ontario is denied. The John Doe claims are ancillary to the main claim and fail with it.
[2] The motion was heard by a telephone conference call.
[3] The evidence before me did not establish that without this order the plaintiff would effectively be deprived of a remedy to protect its intellectual property rights in the designs in question.
[4] Counsel invited me to infer from the flagrancy of the infringements, which an official of Niagara United Enterprises Limited was said to have admitted, that the named defendant was likely to destroy any allegedly infringing garments in its possession, or otherwise cause them to disappear. However, counsel provided no instance where the Court had been prepared to draw this inference in similar circumstances and, given the intrusive nature of the remedy, I am not prepared to do so.
[5] Counsel also relied on other facts: the apparently widespread sale of allegedly infringing garments in other stores in Niagara Falls; the commercial importance of sales during the tourist season; and the likely damage to the plaintiff"s reputation with its principal customer in the city. Nonetheless, these facts, individually or cumulatively, are not sufficient in my opinion to justify the grant of an Anton Piller order.
[6] In any event, the draft order supplied by counsel did not comply with the model order customarily used by the Court as the basis for an Anton Piller order.
[7] The plaintiff also sought an interim injunction to restraint the defendants from infringing the plaintiff"s designs, and other ancillary relief, pending the hearing of the plaintiff"s motion for an interlocutory injunction, possibly as early as August 3, 1999.
[8] I am not satisfied on the evidence before me that, without the grant of this relief, the situation facing the plaintiff is so urgent that further delay is likely to cause such serious and irreparable damage to the plaintiff as to justify the extraordinary measure of granting an injunction without prior notice to the named defendant, with whom the plaintiff has unsuccessfully attempted to settle its claim.
[9] The plaintiff has been aware of the existence of a problem since early June of this year. It served the named defendant with its statement of claim at the beginning of July. If the plaintiff had pursued its claim energetically, an inter partes motion for an interlocutory injunction might already have been heard, or would be heard very soon.
[10] I understand that the plaintiff has only very recently become aware of the widespread scale of the infringement of its designs in Niagara Falls and of the consequent unhappiness of its principal customer there. Nonetheless, even taking this consideration into account, there is insufficient evidence before me to justify the grant of this ex parte injunction.
[11] For these reasons the motion is dismissed.
OTTAWA, ONTARIO
July 23, 1999. J.F.C.C.
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