TRADE MARKS |
Practice |
Boston Pizza International Inc. v. Boston Market Corp.
T-1319-02
2003 FCT 382, Blanchard J.
1/4/03
18 pp.
Boston Pizza International (BPI) and Boston Pizza Royalties Limited Partnership (applicants) seeking interlocutory injunction against respondents--In order to determine whether applicants entitled to interlocutory injunction, applicants must demonstrate affirmative answers to three questions set out in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311--Applicants have furnished evidence of at least some confusion in form of Corbin survey--Dr. Corbin's conclusion of consumer confusion sufficient evidentiary basis to satisfy low threshold of "serious issue"--Applicants have met first hurdle of showing application neither vexatious nor frivolous--While some evidence of confusion exists, nature of harm caused to applicants as result of confusion not clear--Dr. Dawar's evidence concerning loss of sales couched in somewhat hypothetical terms--Dr. Dawar hypothesizes numerous scenarios that may, or may not, materialize--Use of term "may" throughout analysis of loss of sales leading Court to conclude that observations upon which Dr. Dawar bases conclusions speculative--Not clear and non-speculative evidence as required to satisfy test for irreparable harm-- Evidence of irreparable harm speculative and consequently insufficient--As to balance of convenience, if respondents obliged to change restaurant name, benefits from advertising efforts would be wholly lost--Respondents' loss would be certain and tangible--When compared to potential loss that may be suffered by applicants, balance of convenience favours respondents--In addition, factor of delay in bringing injunction application relevant to present case--While respondents might anticipate BPI would take steps to prevent use of name Boston Market, issue of confusion awaits determination at trial--Presumed anticipation of litigation to determine issue not providing basis for applicants justifying delay in notifying respondents--Application dismissed.