3 total
Leave to appeal summary judgment dismissal denied; credibility issues regarding limitations required a trial.
The defendants sought leave to appeal an order dismissing their motion for summary judgment and awarding the plaintiff $81,955.05 in costs.
The underlying action involved claims of software copyright infringement, which the defendants argued were barred by a quitclaim and the expiry of the limitations period.
The Divisional Court dismissed the motion for leave to appeal, finding no error in the motion judge's conclusion that the limitations and quitclaim issues required a trial to resolve credibility concerns.
The court also declined to grant leave to appeal the costs award, finding the motion judge reasonably inferred the plaintiff's costs based on the disparity between the parties' costs outlines.
Stay motion denied; Ontario had real and substantial connection to domain name dispute.
The defendant moved to stay an Ontario action pending the outcome of a related proceeding commenced in Kentucky.
The plaintiff sought declaratory relief concerning its proprietary interest in an internet domain name within Ontario.
The court found the action had a real and substantial connection to Ontario, as the plaintiff’s operations, witnesses, and relevant activities were located in Ontario and Ontario law would likely govern the dispute.
The court concluded that the defendant failed to establish that the balance of convenience favoured the Kentucky proceeding.
The motion to stay the Ontario action was dismissed.
Section 7(b) of the Trade-marks Act is constitutional, but purely functional designs cannot be trade-marks.
Kirkbi held patents for LEGO construction sets.
When the patents expired in Canada, Ritvik began manufacturing and selling interchangeable bricks.
Kirkbi claimed an unregistered trade-mark in the 'LEGO indicia' (the pattern of raised studs) and sued for passing off under s. 7(b) of the Trade-marks Act.
Ritvik challenged the constitutionality of s. 7(b).
The Supreme Court of Canada held that s. 7(b) is intra vires Parliament as a valid exercise of the general trade and commerce power.
However, Kirkbi's passing-off claim was dismissed because the doctrine of functionality bars purely functional designs from being the basis of a trade-mark, whether registered or unregistered.
