Levi Strauss & Co. v. Timberland Co.
T-2702-96
Morneau P.
21/3/97
5 pp.
Motion to strike paragraphs of statement of defence, counterclaim for disclosing no reasonable cause of action-Both parties manufacture, sell garments-Both display trade marks prominently on all merchandise by sewing tab along seam-Defendants alleging since 1982 plaintiffs commencing over 20 actions in this Court for sole purpose of intimidating or coercing competitors into ceasing use of tab devices for purpose of displaying trade marks-Clearly allegation to support cause of action in abuse of process-Tort of abuse of process defined in Tsipoulos v. Commercial Union Assurance Co. (1986), 32 D.L.R. (4th) 614 (Ont. H.C.) as misusing of courts' process to coerce someone in some way entirely outside ambit of legal claim upon which court asked to adjudicate-Occurring when court's process used for improper purpose and where definite act or threat in furtherance of such purpose-Cause of action arising when processes of law used for ulterior or collateral purpose-Trade-marks Act, s. 7(a) not including tort of abuse of process as here alleged-S. & S. Industries Inc. v. Rowell, [1996] 1 S.C.R. 419 holding combined effect of ss. 7(a), 52 to create statutory cause of action for which damages may be awarded if person damaged by false or misleading statements by competitor tending to discredit claimant's business, wares or services-Essential elements of action: false or misleading statement; tending to discredit business, wares or services of competitor; resulting damage-Commencing of numerous actions by plaintiffs not amounting to false or misleading statements within meaning of first essential element of s. 7(a)-Additionally at common law, statements in pleadings to be considered privileged and consequently, even if false, cannot bring within s. 7(a) any defendant to such claim-Motion allowed-Trade-marks Act, R.S.C., 1985, c. T-13, s. 7(a).