Heads Above the Rest Inc. v. Wiens, 2008 FC 1199

 

 

Date: 20081024

Docket: T-1624-07

                                                                                                        Citation: 2008 FC 1199

BETWEEN:                         

HEADS ABOVE THE REST INC.

PLAINTIFF

AND

 

RAY WIENS

DEFENDANT

ASSESSMENT OF COSTS- REASONS

 

W. DOYLE

Assessment Officer

 

 

[1]        The Plaintiff filed a statement of claim with the Federal Court in September 2007 seeking, amid other relief, a declaration and an interlocutory and permanent injunction against the Defendant in regard to the Section 7(b) of Trade-Marks Act.   In March 2008 the Plaintiff subsequently sought, by way of exparte motion to the Court in writing pursuant to Rule 369 of the Federal Courts Rules, along with other relief, that a judgment by default be rendered against the Defendant, Ray Wiens.

 

 

[2]        After having read the motion filed by the Plaintiff and the materials in support and upon reading the submissions of counsel for the Plaintiff, Madam Justice Tremblay-Lamer ordered Judgment against the Defendant.   The May 6, 2008 Judgment of the Court stated:    

            “… THIS COURT ORDERS THAT:

            1. Judgment by default is rendered against the Defendant;

            2. A permanent injunction is rendered against the Defendant and the Defendant’s employees, agents or otherwise from infringing the Plaintiff’s trademark  HEADS ABOVE THE REST in association with promotion, sale and distribution of taxidermy wares and services;

            3. Defendant will deliver to the Plaintiff or destroy under oath, within 10 days of the date of the said judgment, all signage, wares, advertising materials, literature, brochures, labels, packaging, or other material in the possession, custody, power or control of the Defendant that may offend the injunction herein;

            4. Defendant will execute any and all necessary documents and take whatever other steps are necessary to transfer the registration of the Internet domain name HEADSABOVETHEREST.CA to the Plaintiff;

            5. Defendant will pay the Plaintiff damages and an accounting of profit for the illegal use of the Plaintiff’s trademark in the amount of $10,000.;

            6. Defendant will pay pre-judgment and post judgment interest pursuant to Sections 36 and 37 of the Federal Court Act;

            7. Defendants will pay costs for this action to the Plaintiff.”

 

 

[3]        The Plaintiff filed a Bill of Costs in the Montréal office of the Federal Court attached to a sworn affidavit of Claudette Dagenais in support of the disbursements sought.  It was determined that this assessment of costs was appropriate for written representations without the necessity of the appearance of the parties.  A letter was issued setting a timetable for any reply and subsequent rebuttal materials.  To this date no such materials appear to have been served nor filed with the Court.  I am now prepared to proceed with the assessment.  

 

 

 

[4]        The Plaintiff requested the following assessable services under section A of the Bill of Costs; Item 1 preparation and filing of originating documents – five units, item 4 - preparation and filing of an uncontested motion – three units and  item 26 - assessment of costs – four units (in case of contestation).  Item 1 and 4 are allowed as claimed at five units and three units respectively.  In regard to the claim for item 26 it is noted that the assessment was done in writing and no documents were filed in opposition.  In this case,  given these circumstances, item 26 is reduced to one unit - the minimum number of units available for item 26. The total assessable services will therefore be reduced from a claimed $1, 440.00 to an allowed $1,080.00.

 

[5]        The next item I will discuss is the entry under section B of the Bill of Costs – Court fees - statement of claim exhibit A-1 $150.00.  This item is allowed as claimed but I must move it from its listing on the Bill of Costs which attracts the calculation of the GST (5%) and the PST (7.5%) to the section immediately following the calculations of GST and PST.  These taxes (GST and PST) are included in the remittance to the registry as found in Federal Courts Rules Tariff A- Court fees - registry fees and there is no accessory charge for tax.  

 

[6]        The remaining fees and disbursements entries shown under section C of the Bill of Costs are each itemized with exhibits attached to the sworn affidavit of Claudette Dagenais.  These items are allowed as claimed.

 

 

[7]        The Plaintiff’s Bill of Costs presented at $2,005.19 is accordingly assessed and allowed in the amount of $ 1,626.44.   A certificate is now issued in the Federal Court proceeding for $1,626.44.                                                  

 

 

                                   

_­­­­­­­­­­­­­­­” Willa Doyle”   __

                                                                                                            Assessment Officer

 

Fredericton, New Brunswick

October 24, 2008

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1624-07

 

STYLE OF CAUSE:                         HEADS ABOVE THE REST INC. - and-

                                                            RAY WIENS

 

 

 

ASSESSMENT OF COSTS IN WRITING WITHOUT PERSONAL APPEARANCE OF THE PARTIES

 

 

ASSESSMENT OF COSTS -                    

REASONS BY:                                  Willa Doyle, Assessment Officer

 

                                                                                   

DATED:                                             October 24, 2008

 

 

WRITTEN REPRESENTATIONS BY:

 

Claudette Dagenais                         FOR THE PLAINTIFF

 

                                                           

                                                                                                                       

SOLICITORS OF RECORD:

                                   

                                                           

Dagenais Jacob                               FOR THE PLAINTIFF

Montréal, QU