TRADE MARKS |
Practice |
Dole Food Co., Inc. v. Nabisco Ltd.
T-1161-00
Heneghan J.
6/10/00
12 pp.
Defendant seeking interim injunction against Dole in respect of alleged infringement of Nabisco's trade mark--Main action for declaration plaintiff Dole Food Co. Inc. (Dole U.S.) owner of trade mark "Fruit Bowls" in Canada for use in association with food products and order striking Nabisco's registration of "Fruit Bowls" trade mark--Plaintiff Dole Canada licensed by Dole U.S. to use trade mark "Fruit Bowls" in Canada--Mark registered in U.S. for processed fruit packed in plastic container--Plaintiffs did not oppose Nabisco's application for registration of mark in Canada for proposed use in connection with processed fruit--Nabisco counter claims, seeking injunction against use of mark by plaintiffs, damages for alleged infringement--Interlocutory motion dismissed--Although both parties argued case should receive close review on merits (N.W.L. Ltd. v. Woods, [1979] 1 W.L.R. 1294 (H.L.)), general assessment of merits of case sufficient to assess question of serious issue--Competing claims to mark raising serious issue for trial--As to irreparable harm, although apparent potential for harm to marketing strategy and market share of Nabisco if Dole allowed to continue its activities, Nabisco has not established loss could not be compensated: sophisticated participants in marketplace such as litigants should be able to provide Court with indication of loss based upon historical experience and mathematical or statistical analysis of circumstances demonstrating loss not reasonably calculable: Effem Foods Ltd. v. H.J. Heinz Co. of Canada (1997), 75 C.P.R. (3d) 331 (F.C.T.D.).