Motion to amend a Joint Statement of Issues late in a trademark trial to broaden the asserted trademark claim is dismissed.
During a trademark infringement trial, the Plaintiff sought leave under Rule 75 to amend the Joint Statement of Issues to correct an inadvertent clerical error that listed a trademark with a colour claim instead of one without a colour claim.
The Federal Court dismissed the motion, finding that despite the threshold requirement being met, the timing was improper and the amendment would unfairly broaden the case against the Defendant after the evidentiary phase and cross-examinations had concluded, thereby causing non-compensable prejudice and not serving the interests of justice.
Defendant's motion for elevated costs and costs against counsel personally dismissed; costs awarded under Tariff B.
Following the dismissal of the Plaintiff's trademark and copyright infringement action for delay, the Defendant moved for elevated costs, including costs against the Plaintiff's counsel personally under Rule 404.
The Federal Court declined to award costs against counsel personally, finding the conduct did not meet the high threshold.
The Court also rejected the request for a lump sum award as the Defendant failed to provide sufficient evidence of fees incurred.
Costs were fixed at the mid point of Column IV of Tariff B.
