Digests

Lifegear, Inc. v. Urus Industrial Corp.

T-815-01

2002 FCT 1285, Hugessen J.

10/12/02

6 pp.

Motion for summary judgment seeking summary judgment on large part of claim and dismissal of counterclaim--Action for trade-mark infringement--Plaintiff owner of two Canadian marks, "Lifegear" and "Saturne"--Plaintiff entered into distribution agreement with defendant for distribution in Canada of piece of athletic machinery known as Saturne elliptical trainer--Whether plaintiff or defendant or both in breach of agreement--Plaintiff asserted claim under Trade- marks Act, s. 7(b), (c) as well as under s. 19 and asserted claim to breach of both marks--As no evidence of goodwill, reputation, confusion or even existence of any unregistered trade-marks belonging to plaintiff, Court cannot possibly grant summary judgment of s. 7 claims--As no evidence of breach by defendant of plaintiff's "Lifegear" mark summary judgment equally cannot be granted thereon-- Regarding registered "Saturne" mark and claim under s. 19, defendant admitted use of "Saturne" mark in connection with sale and distribution in Canada of goods not of plaintiff's manufacture and not originating from plaintiff--Evidence demonstrated plaintiff discovered defendant's activities in breach of registered trade-mark very early in 2001 and instituted action within months--Accordingly, plaintiff entitled to summary judgment declaring plaintiff owner of Canadian registered trade-mark "Saturne" and declaring defendant infringed mark--Also entitled to injunctive relief against defendant and defendant's officer and employees in usual terms forbidding further breaches of plaintiff's mark--Summary judgment awarded in terms described--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 7, 19 (as am. by S.C. 1993, c. 15, s. 60).