PRACTICE |
Judgments and Orders |
Summary Judgment |
Oakley, Inc. v. Shoppers Drug Mart Inc.
T-1955-00
2004 FC 307, O'Keefe J.
2/3/04
25 pp.
Action claiming copyright, trade-mark infringement-- Plaintiffs claim defendant copied Oakley Ellipse in creating its Shoppers "Optimum Design"--Plaintiff, Oakley, Inc., registered owner of trade-mark for, copyright in artistic work, "Ellipse Design"--Intended as stylized "O" for Oakley-- Defendant's "Optimum" design for customer loyalty program including central ellipse or stylized "O" with chevrons on each side representing water ripples and word "Optimum" placed beneath, and "Shoppers" above--Frank Casera creator of Shoppers "Optimum" Design--Plaintiffs relying on e-mail sent to Mr. Casera subsequent to creation of "Optimum" logo, raising question of similarity to "Oakley" ellipse design--Mr. Casera swearing in affidavit did not copy Oakley design directly or indirectly--Stating no recollection of being aware of existence of Oakley elliptical design at time created original Shoppers "Optimum" Design in late December 1998--In order to grant summary judgment, Court would have to find Mr. Casera not credible--Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.) held that where serious issue as to credibility, case should go to trial because parties should be cross-examined before trial judge--Mere existence of apparent conflict in evidence not precluding summary judgment; court should take "hard look" at merits and decide if issues of credibility need to be resolved--As serious issue with respect to credibility of Mr. Casera's testimony, matter should go to trial so that witness can be cross-examined before trial judge--Mr. Casera's evidence central to issue of copyright infringement--Motion dismissed.