Kitasoo First Nation v. Urban Distillers Inc., 2015 FCA 233

Date: 20151028

Docket: A-436-14

Citation: 2015 FCA 233

Heard at Vancouver, British Columbia, on October 28, 2015.

Judgment delivered from the Bench at Vancouver, British Columbia, on October 28, 2015.

Date: 20151028

Docket: A-436-14

Citation: 2015 FCA 233

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Vancouver, British Columbia, on October 28, 2015).

GAUTHIER J.A.

[1]               This is an appeal by the Kitasoo Band Council from a decision of the Federal Court on a summary judgment motion brought by the appellant and by the City of Terrace in the context of their action for infringement of their official marks.

[2]               We have not been persuaded that the judge made a palpable and overriding error in finding that the applicants had failed to establish that either of them had used the official marks as of the relevant dates. (sub-paragraph 9(1)(n)(i) of the Trade-marks Act, R.S.C. 1985, c.T-13). Thus, their marks could not be enforced against the respondent.

[3]               In light of the way in which the applicants cast their motion for summary judgment seeking a declaration of enforceability of their marks and a declaration of infringement against the respondent, we do not accept the appellant’s argument that the judge had no jurisdiction to grant judgment, effectively dismissing their action.

[4]               However, in the absence of a summary judgment motion in respect of the Counterclaim of the respondent, the judge erred in granting the Counterclaim.

[5]               Thus, the appeal will be granted in part without costs. The judgment of the Federal Court will be amended to read as follows:

The action is dismissed with costs.

"Johanne Gauthier"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

(APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE MARTINEAU OF THE FEDERAL COURT, DATED SEPTEMBER 2, 2014, DOCKET NO. T-700-13.)

APPEARANCES:

SOLICITORS OF RECORD: