Molson Breweries v. Kuettner
T-106-99
Aronovitch P.
9/12/99
11 pp.
Internet domain names-Application for leave to deposit declaration of acting manager of Dispute Administration for Network Solutions, Inc. (NSI), tendering control over use and registration of domain names molsons.com and molsonbeer.com, into Registry of Court-Application arising in context of action for infringement, passing off and depreciation of goodwill of registered trade marks "Molson" and "Molson's"-Within relief sought, order requiring defendants to transfer ownership of Internet domain names molsons.com and molsonbeer.com-NSI responsible for registration of Internet domain names-NSI registers domain names on first-come first, serve-basis-Does not determine legality of domain names, or otherwise evaluate whether registration or use may infringe rights of third party-Disputed domain names herein put on "hold" by NSI-NSI will not allow any change to registration record or change status of domain names until either Court renders temporary or final decision regarding interests of party in domain name or NSI receives voluntary dismissal filed by plaintiff-Whether jurisdiction in Court to accept deposit-Application dismissed-Issue whether Federal Court Rules, 1998, rr. 377 and 378 (preservation of property) may be applied in circumstances-Applicant's onus to identify property sought to be preserved, as well as respective rights in such property-Application fails in that neither exact nature nor effect of deposit of declaration clear-Among questions outstanding and unanswered whether acceptance of tender, by Court, may give rise to rights in third parties or may be challenged by these and whether there may be potential burden or responsibility to Court as result-Seems NSI seeking to devolve its responsibility in favour of Court where more appropriate mechanism might be by way of third party escrow arrangement-Certainly not apparent tender in any way necessary for Court's determination of rights of parties in litigation-Also fatal to application fact affidavit evidence required to meet tests in Perini America Inc. et al. v. Alberto Consani North America Inc. et al. (1992), 57 F.T.R. 139 (F.C.T.D.) with regard to application of rr. 377 and 378 not before Court-No evidence plaintiff or defendants would suffer irreparable harm if denied-NSI's forthcoming or apprehended dispute resolution policy not before Court-No evidence of whether or how new policy will affect rights of parties, especially former registrants, as herein-Motion therefore dismissed without prejudice to plaintiff's right to bring further motion with sufficient argument and affidavit evidence to meet applicable tests at law-Federal Court Rules, 1998, SOR/98-106, rr. 377, 378.