Man and His Home Ltd. v. Mansoor Electronics Ltd.
T-2097-96
Tremblay-Lamer J.
28/11/96
11 pp.
Application for interlocutory injunction restraining defendants from using "Sentinel" in association with security, alarm equipment or any Sentinel registered trade marks or any trade mark likely to be confusing therewith-Plaintiff owning five "Sentinel" registered trade marks-In January 1993 discovering defendants using trade mark infringing, causing confusion with "Sentinel" registered trade marks in connection with alarm, security systems-Defendant Mansoor agreeing, undertaking to stop using "Sentinel", "Sentinelle" in relation to home security and alarm systems-Notwithstanding undertaking, Mansoor obtaining registration of trade mark "Home Sentinel" in 1996-Interlocutory injunction granted only where merits clear, risk of harm to grieving party great, imminent-Three-part test established in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.) applied-(1) Regarding infringement, plaintiff not raising serious issue to be tried-Only common element use of "Sentinel"-"Sentinel" not distinctive as 54 registered trade marks using same word-Where party reaching inside common trade vocabulary for word mark, seeking to prevent competitors from doing same thing, range of protection more limited than in case of invented or unique or non-descriptive word: General Motors Corp. v. Bellows, [1949] S.C.R. 678-Parties operate in different markets-Plaintiff's customers wanting more sophisticated security system (monitored), while defendant's customers mainly interested in "do-it-yourself kits" to avoid extra costs stemming from monitoring-Regarding passing-off, plaintiff not demonstrating serious issue to be tried-Plaintiff also not showing irreparable harm not compensable in damages should injunction be refused-Must be actual evidence of loss of reputation-Evidence tendered must be clear, non-speculative-Bare allegation defendant's activities causing it to suffer irreparable harm insufficient-Defendant's distributor offering to keep separate, distinct accounts for all defendant's wares sold-Because harm allegedly suffered compensable by damages, plaintiff not establishing balance of convenience lying in its favour-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 6(2), 7, 12(1)(d), 16, 17(1), 18, 19 (as am. by S.C. 1993, c. 15, s. 60), 20.