PRACTICE |
Pleadings |
Particulars |
Gillette Co. v. Dynamic Toy Importers Ltd.
T-975-03
2003 FC 956, Hargrave P.
6/8/03
9 pp.
Motion seeking particulars of pleas of non-registerability, non-distinctiveness--Plaintiff producing well-known line of alkaline batteries under "Duracell" trade-mark, in various registered designs, including familiar battery with copper upper portion, black lower portion--Plaintiff wishing to know fact relied upon by defendants, entitled to particulars-- Defendants submitting case involved technical matter requiring expert opinion, characterizing defence as traverse, no particulars required--Traverse denial of allegation of fact contained in pleading--Traverse by defendant, so long as in substance traverse of other side's allegation, not giving rise to right to particulars--Pleas set out in paragraph 4 of present defence constitute negatives pregnant with affirmative: pleas go beyond mere denial, raise number of possibilities-- Attempt by defendants to prove affirmative case against plaintiff, without previous notice, would be injustice resulting in surprise, prejudice--Pleas in section 4 of defence attack on validity, going beyond mere traverse--Particulars required-- Motion allowed.