Tender Loving Things, Inc. v. Doctor Joy
T-1587-95
Hargrave P.
29/12/95
12 pp.
Motion for further and better particulars as statement of claim confusing, particulars already provided raising uncertainties-Statement of claim alleging copyright infringement of two-dimensional artistic work through defendant's manufacture, sale of three-dimensional small, wooden, four-legged, hand-held massage tool, decorated with happy face under name "Happy Massager"-Confusion may be due to fact subject of copyright protection may be industrial design; plaintiffs unable to obtain industrial design protection because either shape of device dictated by mechanical function or design applied to long-established well-known form-Copyright Act, s. 64(2) exempting from protection useful article of which more than 50 reproductions-S. 64(3)(e) may operate as saving provision where article artistic work used as or for representation of real or fictitious being applied to article as feature of shape-Defendant confused by reference to original artistic work slipping into description of industrial design for tool and referring to drawings of "Happy Massager" in commercial context-Also puzzled by reference to, and nature of, fictitious being-Defendant reasonably needing some particulars, in addition to those provided, to understand plaintiffs' case, and to reply intelligently-Although defendant's affidavit material thin, sufficient to support motion given confusing statement of claim-Defendant entitled to answers to: (1) whether Happy Massager subjective concept or unique representation of previous existing fictitious being with some objective reality; (2) respects in which plaintiffs' alleged design unique; (3) whether fictitious being having any objective manifestation other than in plaintiffs' drawings; (4) circumstances and timing of association of Happy Massager with fictitious being or with corporate plaintiffs' massage tool; (5) whether cartoon-like drawings of Happy Massager set out in Schedule C to statement of claim prepared for any specific commercial or industrial purpose and if so, for what purpose; (6) whether Happy Massager ever appearing in any film, video, book or other work, and if so specific particulars.