TRADE MARKS |
Practice |
Viacom Ha! Holding Co. v. Persons Unknown
T-550-99
Pelletier J.
20/12/00
6 pp.
Motion for default judgment against three defendants served at same location on same day in amount of $6,000 per defendant--One of individual defendants claimed to be half owner of corporate defendant--Counterfeit goods offered for sale from premises--Defendants not filing statement of defence--$6,000 conventional measure of nominal damages for sale of counterfeit goods of nature in question here--Whether payable by each of defendants or payable jointly and severally--Past practice in Court to issue individual judgments--By not defending claim defendants admitting engaged in sale of counterfeit goods, but such admission not determining whether engaged as principals, who reap profit from venture, or as employees, who profit to extent of wages only--Fixing nominal damages at $6,000, as opposed to $3,000 assessed against push cart operators, street vendors, intended to reflect greater potential economic impact of fixed retail operation upon plaintiffs' economic interests--Fixed retail operations more likely to involve paid employees--Not intended, in setting nominal damages for fixed retail operations, to have amount of recovery vary with number of staff--As one undertaking, should be one award of nominal damages--Counter-argument that number of staff indicator of level of economic activity--But does not distinguish between those who reap profit, those who merely mind store--More fundamentally such argument putting into question rationale for permitting execution of rolling Anton Piller Order against such premises--Even employees benefit from unlawful commerce--If felt victimized by possibility of judgment against them would file statement of defence--While Trade-marks Act not speaking of joint and several liability, statement of claim claiming damages for passing off, common law tort--Rules dealing with joint tortfeasors providing all persons acting in pursuit of common end responsible for entire result--Where number of persons engaged in business selling counterfeit goods, and where not possible to distinguish individual contribution to harm caused, and in absence of any exculpatory plea on part of any of them, fair to assess liability on joint and several basis--Judgment issuing against defendants jointly and severally--Trade-marks Act, R.S.C., 1985, c. T-13.