Non-party moving parties sought to set aside or vary a default judgment injunction that prohibited marketing and distribution of a competing sesame candy product with allegedly infringing packaging.
The court held that the moving parties, former distributors and purchasers of the defendant’s assets, were fully aware of the underlying claim and failed to show that their evidence would have led to a different result under Rule 37.14.
Applying the Trade-marks Act confusion analysis, the court found the competing product and packaging were confusingly similar and were marketed to former customers in a manner constituting passing off.
The court also held that the respondent, a Polish corporation, had standing to enforce copyright in Canada because Poland is a treaty country under the Berne Convention, and that injunctive relief did not depend on proof of quantified damages.
The motion was dismissed and costs of $25,000 were awarded.
