Date: 20110526
Docket: T-1210-09
Citation: 2011 FC 620
Ottawa, Ontario, May 26, 2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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HARDY WAY LLC
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Plaintiff
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and
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THE LITTLE BLUE BOX COMPANY LTD. and
DEBBIE CRADDOCK
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Defendants
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REASONS FOR ORDER AND ORDER
[1]
The
Plaintiff has made a motion for default Judgment against both Defendants,
neither of whom has filed a Defence or any other document in this action.
[2]
The
action, as pleaded, alleges infringement of the Plaintiff’s registered
trade-mark number TMA 663,070 and other activities of the Defendants contrary
to the provisions of sections 7(b) (c) and (d) and section 22(1) of the Trade-Marks
Act, RSC 1985, c.T-13. All of the alleged wrongful activity is predicated
on the Defendants’ “Ed Hardy Trade-mark”. That trade-mark is defined in terms
of the registration TMA 663,070, which is for the three words DON ED HARDY for
use in association with wares described as:
(1) Clothing, namely pants, skirts,
children’s and baby wear, sports wear, namely jeans, overcoats, shirts,
blouses, t-shirts, bathing suits, sneakers, athletic shoes; bandanas for
clothing; hats; caps; visors; belts for clothing.
[3]
The
affidavit evidence filed in support of the motion shows that the three words
DON ED HARDY appear on wares offered for sale by the Defendants in only three
places, a hat label and disc as shown in two of the photographs appearing at
paragraph 43 of the Carrillo affidavit, and on a hat label shown in one of the
photographs at paragraph 51 of that affidavit. Other photographs show various
graphical designs and, on occasion, the two words ED HARDY but not the three
words DON ED HARDY as in the registered trade-mark or the “Ed hardy Trade-mark”
as defined in the Amended Statement of Claim.
[4]
There is
no evidence directed to any specific quantum of damage. On the record there is simply
Counsel’s written argument that there is an early precedent in a different case
where $6,000.00 was awarded which, it is argued, should be subjected to an
unsubstantiated inflationary figure to yield $7,250.00. This is an
unsatisfactory manner for assessment of damage.
[5]
Given the
state of the evidence, the Court can only give default judgment in respect of
caps with an injunction and delivery up restricted to caps, and nominal damages
in the order of $500.00.
[6]
Under the
circumstances, the Court will permit the Plaintiff an opportunity to file
further evidence and make further argument. There has been an inexplicable
delay in the Court system in bringing this matter forward to me; therefore, Counsel
will have sixty days to file further evidence and make further submissions,
failing which Judgment will issue in the terms indicated above.
ORDER
FOR THE REASONS PROVIDED:
THIS COURT ORDERS that:
1.
The
Plaintiff shall be permitted sixty (60) days to file further evidence and make
further submissions; and
2.
The
Registry is directed to return the file to me after the expiry of said sixty
(60) days or earlier if further evidence and submissions are received before
that time.
"Roger
T. Hughes"
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