Date: 20050907
Docket: T-1499-05
Citation: 2005 FC 1221
Ottawa, Ontario, September 7, 2005
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
SHAHRVAND PUBLICATION LTD.
Plaintiff
and
SHAHRVAND B.C. LTD. and
HADI EBRAHIMI-ROUDBARAKI
Defendants
REASONS FOR ORDER AND ORDER
[1] The plaintiff seeks an interim ex parte injunction prohibiting the defendants from using the unregistered trade mark SHAHRVAND (the trade mark) in connection with the publication by the defendants of a weekly newspaper directed to the Persian community in Vancouver, British Columbia.
[2] The affidavit evidence before me indicates that since 1994 the plaintiff and the defendants entered into an oral arrangement described by the plaintiff as a licence agreement concerning the use of the trade mark in connection with the defendants' publication of its newspaper in British Columbia.
[3] Rule 374 of the Federal Court Rules, 1998 (the Rules) and the jurisprudence govern the issuance of an interim ex parte injunction.
[4] During argument I indicated to counsel for the plaintiff that I was not satisfied the plaintiff met the conditions of Rule 374 for the issuance of the injunction sought without notice to the defendants.
[5] However, I did agree with counsel for the plaintiff that the current publication by the defendants of their newspaper would appear to contain on its face a blatant misrepresentation that the newspaper is published by the defendants in association with the plaintiff (see page 77 of the motion record of the plaintiff).
[6] The evidence before me clearly demonstrates at this point in time there is no longer any association between the plaintiff and the defendants and that the public is thereby misled to the irreparable detriment of the plaintiff and that the defendants should be prohibited from claiming such association as currently set out in the defendants' newspaper.
[7] To be clear, the injunction which the Court issues does not prohibit the defendants from publishing their newspaper under the name SHAHRVAND but prohibits the defendants from claiming that the newspaper being currently published by the defendants is done in association with the plaintiff.
[8] Nothing in the Court's decision prevents the plaintiff, with notice to the defendants, from seeking an injunction, interim or interlocutory, in the terms described in paragraph one of these reasons.
ORDER
THIS COURT ORDERS that:
1. The plaintiff's application for an interim ex parte injunction prohibiting the defendants from using the unregistered trade mark SHAHRVAND in connection with the defendants' newspaper publication is dismissed without prejudice to the plaintiff to renew its application upon due notice to the defendants by service of the plaintiff's motion record.
2. The defendants are hereby prohibited for a period of 14 days in accordance with Rule 374 from indicating directly or indirectly in its publication that the newspaper is published in association with the plaintiff.
3. Costs in the cause.
"François Lemieux"
J.F.C.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1499-05
STYLE OF CAUSE: SHAHRVAND PUBLICATION LTD.
v.
SHAHRVAND B.C. LTD. and
HADI EBRAHIMI-ROUDBARAKI
PLACE OF HEARING -
BY VIDEO CONFERENCE: OTTAWA (ONTARIO) and TORONTO (ONTARIO)
DATE OF HEARING: SEPTEMBER 7, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE LEMIEUX
DATED: SEPTEMBER 7, 2005
APPEARANCES:
MR. GLEN M. PERINOT FOR THE PLAINTIFF
SOLICITORS ON THE RECORD:
HEYDARY HAMILTON LLP FOR THE PLAINTIFF
TORONTO, ONTARIO
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