CITATION: Agros Trading Confectionery SP.Z.O.O. v. K-Max Corp., 2015 ONSC 3166

COURT FILE NO.: CV-14-499840

DATE: 20150519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Agros Trading Confectionery SP.Z.O.O., Plaintiff

– AND –

K-Max Corp., Defendant

BEFORE: Justice E.M. Morgan

COUNSEL: Angelo C. D’Ascanio, for the Moving Parties, Exclusive Candy and Novelty Distributing Limited and K-Max (2013) Corporation

Leon J. Melconian, for the Plaintiff

HEARD: March 18, 2015

ENDORSEMENT

I. Nature of the motion

[1] The Moving Parties, Exclusive Candy and Novelty Distributing Limited (“Exclusive”) and K-Max (2013) Corporation (“K-Max 2013”), move against a final judgment of Mew J. issued on January 22, 2015. They are non-parties to this action who are affected by an order that forms part of the final judgment. They bring their motion under Rule 37.14(1)(a) of the Rules of Civil Procedure to have the judgment set aside or varied so as to exclude them from its ambit.

[2] The motion is brought against the Plaintiff who obtained judgment in the action. The Defendant had previously been noted in default for failure to file a defense. It has not participated in the motion.

[3] The Plaintiff claimed in its action that certain sesame candy snacks identified as “Classic Sesame” are being passed off as the “Sesame Snap” snacks produced and sold by the Plaintiff, and that the “Classic Sesame” packaging infringes trade-marks and copyrights held by the Plaintiff. The Plaintiff is the registered trade-mark owner of the “Sesame Snap” brand, which has been sold in Canada since at least 1971 and was registered as a trade-mark in 1987.

[4] “Sesame Snap” candies are sold in over 25 countries worldwide, including Canada. Both products, “Sesame Snap” and “Classic Sesame”, are packaged in a blue, white, red and clear cellophane wrapper design, with the name of the product in red lettering surrounded by a blue border.

[5] The two packaged candies look like this:

[6] When displayed in the store in a box, they look like this:

[7] The judgment of Mew J. contains a permanent injunction on the marketing of the “Classic Sesame” brand in Ontario. It prohibits the Defendant and all persons receiving notice of the judgment from “advertising, selling or otherwise distributing sesame candies identified as ‘Classic Sesame’ and any other name and packaging which infringe the trade-marks of the plaintiff [or] the copyrighted works of the plaintiff [or] which pass off the defendant’s goods as being those of…the plaintiff.”

[8] The Moving Parties were served with a copy of the judgment and have ceased marketing, distributing, and selling “Classic Sesame” candies. They submit that Mew J. was incorrect, or did not have the requisite information at his disposal when granting the default judgment. They contend that their continuing use of the “Classic Sesame” brand and packaging design does not infringe the Plaintiff’s continuing use of its own brand and packaging design for sesame candies.

II. The relationship between the parties

[9] From 2003 to 2010, the Defendant was an authorized distributor of the Plaintiff’s “Sesame Snap” product in Canada. Accordingly, it was very familiar with the “Sesame Snap” product, packaging, and trade-marks. The principal of the Defendant is Krzysztof Werocy.

[10] Likewise, from 2002 to 2013, Exclusive was an authorized distributor of Sesame Snap candies. During this period, it purchased over $2,000,000 (U.S.) worth of Sesame Snaps from the Plaintiff, which amounted to 15-20% of all of its product purchases. It was therefore also very familiar with the “Sesame Snap” product, packaging, and trade-marks. The principal of Exclusive is James Picard.

[11] In mid-2012, the Plaintiff brought an action against the Defendant regarding the Defendant’s sale of Classic Sesame candies in packaging very similar to that of the Plaintiff. The Defendant was noted in default, but subsequently moved to set aside the noting in default. That motion, however, was never heard, and on April 29, 2013 was abandoned by the Defendant. Nothing further occurred in the action, and it was subsequently administratively dismissed.

[12] Shortly after the Defendant abandoned its motion to set aside the noting in default, Krzysztof Werocy, on behalf of the Defendant, approached James Picard, on behalf of Exclusive, and proposed that Exclusive begin purchasing and distributing Classic Sesame. The record is clear that Picard was aware that the Defendant had been selling its own Classic Sesame brand in order to compete with Sesame Snaps and that as principal of Exclusive he was familiar with the Sesame Snaps packaging, design, print, logo, wrapping colours, etc. He acknowledged that when he saw the Classic Sesame box, he recognized it as being similar in design to the box of Sesame Snaps that Exclusive had been purchasing from the Plaintiff.

[13] On October 23, 2013, Picard incorporated K-Max 2013 for the specific purpose of purchasing the assets of the Defendant. The asset purchase included all of the Defendant’s intellectual property and proprietary information, including trade-marks, business names, trade names, industrial designs and copyrights. The Asset Purchase Agreement dated November 1, 2013 was signed by Picard, on behalf of K-Max 2013 as buyer, and Werocy, on behalf of the Defendant as seller.

[14] Picard indicated in cross-examination that he was concerned about the Defendant’s liabilities. Counsel for the Plaintiff contends that this is the reason the transaction was structured as an asset purchase, while counsel for the Moving Parties states that the asset purchase structure had more to do with tax considerations. In any case, the Asset Purchase Agreement contained a representation by the Defendant that there were, “no actions, suits or proceedings in progress, pending or threatened against, or adversely affecting or which could adversely affect the business or the assets of K-Max [the Defendant].” This was, of course, a misrepresentation.

[15] Picard also acknowledged in cross-examination that Werocy has been his partner in K-Max 2013 since November 2013. Since starting up its business immediately after the asset purchase deal was finalized, Werocy has been managing K-Max 2013. The contract between the Defendant and K-Max 2013 in fact embodied a deal between Werocy on one hand and Werocy and Picard on the other.

[16] Whatever Picard claims to have known or not known – and it is clear that Picard knew of the similarity in the products and at least the potential for a claim – K-Max 2013 was, through Werocy, aware of the misrepresentation in the Asset Purchase Agreement. K-Max 2013 and its principals effectively took over the Defendant’s business at a time when they were aware of the potential exposure to a suit by the Plaintiff. Indeed, that exposure would appear to be the raison d’être for K-Max 2013’s existence.

[17] When K-Max 2013’s newly purchased inventory of Sesame Snaps was depleted, it began selling Classic Sesame to their customers who had previously been purchasing Sesame Snaps. Picard stated that he is unaware of any customers that stock both brands of sesame candy. The nature of the wares is for all intents and purposes identical. Picard indicated in cross-examination that some of K-Max 2013’s customers asked about the change in brand from Sesame Snaps to Classic Sesame, while others did not seemed to notice and simply bought the new brand without question.

[18] As indicated, Werocy runs the operations of K-Max 2013. He was, and is, entirely familiar with the marketing of the Plaintiff’s product since he ran the operations of the Defendant for many years. Picard is equally familiar with the Plaintiff’s marketing and its product, as he ran Exclusive, another of the Plaintiff’s distributors, for several years.

III. The action and motion

[19] Werocy’s partner and co-director in the Defendant company was Robert Dziedzic. The Statement of Claim herein was served on Dziedzic on March 10, 2014 at Dzidzic’s residence. Dzidzic advised Werocy of the Statement of Claim within a few weeks of its having been delivered to him and many months before the Plaintiff moved for default judgment.

[20] Neither the Defendant nor K-Max 2013, nor, for that matter, Exclusive, took any steps to defend or participate in this action. The Moving Parties correctly state that they were never formally served with the Statement of Claim; in response, the Plaintiff correctly states that it was not obliged to serve them. The claim is against the Defendant, who was formally served. The Moving Parties are non-parties and need not have been served; they cannot, however, say that they were unaware of the existence of the claim or its substantive contents. Werocy was aware of it through Dziedzic, and Picard was aware of it through Werocy.

[21] The relief sought in the Statement of Claim included a permanent injunction restraining the Defendant and its assigns from selling Classic Sesame or any other product or packaging which violates the intellectual property rights of the Plaintiff. The Claim alleged that the Defendant was passing off Classic Sesame as Sesame Snaps, and that the sale of Classic Sesame violated the trademarks and copyright of the Plaintiff.

[22] In the motion for default judgment, counsel for the Plaintiff submitted samples of Sesame Snaps and of Classic Sesame for the court’s consideration. In his endorsement, Mew J. commented:

Having reviewed the affidavit of Pawel Celinski and examined sample packages of the plaintiff’s ‘sesame snaps’ product and the product which the defendants have sold and distributed, I am satisfied that the ‘Classic Sesame’ candies infringe the copyrighted works and trademarks of the plaintiff.

[23] Rule 37.14(1)(a) provides that a party who is affected by an order obtained on motion without notice may move to set aside or vary that order, while Rule 37.14(2) provides that the court has discretion to set aside, vary, or leave the order intact, as the court deems just. The power of review under Rule 37.14 is quite broad, giving the court the authority to substitute its own judgment for that of the original order if the Moving Parties demonstrate that their evidence and submissions would have led the court to a different result: Wayne v 1690416 Ontario Inc., 2012 ONSC 4861. In general, it is incumbent on the court to facilitate the just and expeditious resolution of the dispute: Liu v Daniel Executive, 2009 55304, at paras 9-10, leave to appeal denied 2011 ONSC 379 (Div Ct).

IV. Trade-marks Act and passing off

[24] The Statement of Claim pleads a number of causes of action, including violation of trade-marks, passing off, and copyright violation. The tort of passing off operates both as a violation of the Trade-marks Act, RSC 1985, c. T-13 and as a cause of action at common law. The copyright infringement is pleaded as a cause of action under the Copyright Act, RSC 1985, c. C-4. It is trite to say that where the Plaintiff pleads alternate causes of action, it need only succeed on one of them in order to obtain a remedy.

[25] The Plaintiff claims that the Defendant, and by extension the Moving Parties, have been passing off their product, Classic Sesame, as the Plaintiff’s product, Sesame Snaps.

[26] At common law and under section 7(b) of the Trade-marks Act, passing off occurs when one party directs public attention to his goods or wares in such a way as to cause or be likely to cause confusion in Canada at the time he commenced so directing those wares. Section 6 of the Trade-marks Act makes it clear that the use of a trade-mark or trade name causes confusion for these purposes if its use is likely to lead to the inference that the goods or wares are manufactured or sold by the same person.

[27] Under s. 6(5) of the Trade-marks Act, the question of confusion is to be determined with regard to all the surrounding circumstances, including

a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known;

b) the length of time the trade-marks or trade-names have been in use;

c) the nature of the goods, services or business;

d) the nature of the trade; and

e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them.

[28] Both the Plaintiff and the Defendant have registered trade-marks in Sesame Snaps and Classic Sesame, respectively; and the Defendant’s trademarks have now been assigned to K-Max 2013. As indicated, Sesame Snaps has been marketed in Canada for over 40 years, since at least 1971. Classic Sesame has been marketed in Canada since 2010, and has been sold by the Moving Parties to their network of former Sesame Snaps buyers and others since 2013.

[29] Counsel for the Moving Parties submits that Mew J. erred in arriving at his conclusion that there would be confusion over the two products since there was no expert evidence before him on which he could rely. Counsel for the Plaintiff submits that this is a case about wrappings and boxes, and that Mew J. had both samples before him and correctly used his authority to assess whether or not they were confusing without expert evidence.

[30] The Federal Court of Canada explained in TLG Canada Corp. v Product Source International LLC, 2014 FC 924, at para 53, that the issue of “confusion” in a case of passing off or under s. 7 of the Trade-marks Act must be examined in relation to “a matter of first impression in the mind of a casual consumer somewhat in a hurry ....who does not give pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the marks.” What the court must determine is the “first impression” of a person who “does not pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the marks”: Veuve Clicquot Ponsardin v Boutiques Cliquot Ltée, 2006 SCC 23, [2006] 1 SCR 824, at para 20.

[31] In my view, Mew J. was properly situated in making the requisite analysis and in arriving at his conclusion. As Rothstein J. put it on behalf of a unanimous Supreme Court of Canada in Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 SCR 387, at para 41, “In this case, the question is whether, as a matter of first impression, the ‘casual consumer somewhat in a hurry’ who sees the [Moving Party’s] trade-mark, when that consumer has no more than an imperfect recollection of any one of the [Plaintiff’s] trade-marks or trade-name, would be likely to be confused.”

[32] The Supreme Court has expressly endorsed the approach taken by the House of Lords in General Electric Co. v General Electric Co., [1972] 2 All ER 507, at 515, where Lord Diplock wrote on the lack of need for expert evidence in determining confusion in a passing off case:

The judge's approach to the question should be the same as that of a jury. He, too, would be a potential buyer of the goods. He should, of course, be alert to the danger of allowing his own idiosyncratic knowledge or temperament to influence his decision, but the whole of his training in the practice of the law should have accustomed him to this, and this should provide the safety which in the case of a jury is provided by their number. That in issues of this kind judges are entitled to give effect to their own opinions as to the likelihood of deception or confusion and, in doing so, are not confined to the evidence of witnesses called at the trial is well established by decisions of this House itself. The judge's approach to the question should be the same as that of a jury. He, too, would be a potential buyer of the goods. He should, of course, be alert to the danger of allowing his own idiosyncratic knowledge or temperament to influence his decision, but the whole of his training in the practice of the law should have accustomed him to this, and this should provide the safety which in the case of a jury is provided by their number. That in issues of this kind judges are entitled to give effect to their own opinions as to the likelihood of deception or confusion and, in doing so, are not confined to the evidence of witnesses called at the trial is well established by decisions of this House itself. The judge's approach to the question should be the same as that of a jury. He, too, would be a potential buyer of the goods. He should, of course, be alert to the danger of allowing his own idiosyncratic knowledge or temperament to influence his decision, but the whole of his training in the practice of the law should have accustomed him to this, and this should provide the safety which in the case of a jury is provided by their number. That in issues of this kind judges are entitled to give effect to their own opinions as to the likelihood of deception or confusion and, in doing so, are not confined to the evidence of witnesses called at the trial is well established by decisions of this House itself.

[33] There was no need for an expert to inform Mew J. on the impressionistic, common sense view he was to take of the evidence. “It is difficult to see what is gained from the evidence of an expert as to his own opinion where the tribunal is in a position to form its own view”: esure Insurance Ltd. v Direct Line Insurance Plc, [2008] EWCA Civ 842, at para 62 (CA). He was entitled to proceed by “putting [him]self in the position of the average person going into the market to purchase a dandruff remover and hair tonic [or sesame candy snack]”: Ultravite Laboratories Ltd. v. Whitehall Laboratories Ltd., 1965 43 (SCC), [1965] SCR 734, at 738.

[34] Counsel for the Moving Parties states that it would have been relatively easy to obtain survey evidence regarding public confusion over the products. He cites Mattel, Inc. v 3894201 Canada Inc. 2006 SCC 22, [2006] 1 SCR 772 for the proposition that an adverse inference should be drawn from the Plaintiff’s failure to produce such readily available expert evidence.

[35] In my view, this is a misreading of the Supreme Court of Canada’s view of survey and other expert evidence on a question of this nature. Survey evidence, in particular, has been treated with skepticism when it comes to a common sense evaluation such as that called for in a passing off and “confusion” case. As Rothstein J. said in Masterpiece, at para 98, “I think it is apparent, particularly with respect to the survey, that the evidence was of little assistance to the trial judge and indeed distracted from the required confusion analysis.

[36] The Supreme Court of Canada has instructed that, where expert evidence is offered on the question of “confusion” in the public mind, a trial judge is to approach that evidence cautiously. The question with respect to the admissibility of expert evidence in a case like this was established in R v Mohan, 1994 80 (SCC), [1994] 2 SCR 9, where the test was said to be one of relevance and necessity. The Supreme Court has often expressed its skepticism with respect to whether that test can be met in a case where a public-oriented, impressionistic evaluation by the trial judge is called for:

Where parties propose to introduce expert evidence, a trial judge should question the necessity and relevance of the evidence having regard to the Mohan criteria before admitting it. As I have already pointed out, if a trial judge concludes that the expert evidence is unnecessary or will distract from the issues to be decided, he or she should disallow such evidence from being introduced.

Masterpiece, at para 99.

[37] Mew J. took it on himself to assess the evidence that was before him, since calling for expert evidence would have distracted from, rather than informed, the question that he was to answer. Indeed, one can best understand the proper analysis in a case of this kind by comparing it to what would likely have taken place had the court been presented with the expert evidence that the Moving Parties suggest ought to have been there; the sensible, impressionistic evaluation of the two products would then “contrast with what is not to be done — a careful examination of competing marks or a side by side comparison”: Masterpiece, at para 40. Mew J. put himself in the role of an adult in a candy store, which was the proper posture to adopt and which needed no help from a credentialed expert witness.

[38] In granting judgment for the Plaintiff, Mew J. viewed the two products as being confusingly similar to each other. So do I. They are, to be sure, not identical; but the wrapping, the colour, the font, the overall packaging, the box display, the size and the shape of the candies are so similar that no person in a convenience store looking for a Sesame Snap will hesitate in picking up a Classic Sesame.

[39] From the point of view of a consumer looking for a quick snack, Sesame Snaps and Classic Sesame are the same thing. Picard himself conceded that he had an impression along these very lines when he first saw the Classic Sesame product and compared it in his mind to the familiar Sesame Snap product; likewise, the Moving Party’s customers, in readily taking the new Classic Sesame in place of the former Sesame Snap, understood that the consumer would do so as well.

[40] In fact, the name “Classic Sesame” is doubly confusing, as it suggests to any consumer that might by chance notice the difference between the two products that the “Classic” one is the original one that the consumer has long purchased. That, of course, would be a false and misleading impression in itself. Sesame Snap is the classic product in Canada, and Classic Sesame is the not-so-classic newcomer.

[41] Plaintiff’s counsel points out that there is no evidence that any other product is sold in Canada that has a design, logo, package or name that is similar to the Sesame Snap trademarks. The Plaintiff’s distinctiveness, which has been established in Canada over the past four decades, obviously remains intact, and the good will generated by this distinctiveness is diminished by the Moving Parties’ introduction of a brand that creates consumer confusion.

[42] The evidence before me makes it clear that the Moving Parties went out of their way to find a product that would sow confusion in the mind of the consuming public, and that they succeeded in this task. They marketed Classic Sesame candies by passing them off as Sesame Snaps.

V. Copyright violation

[43] The Plaintiff also pleaded a violation of its rights of copyright on the design of its box for Sesame Snap candies. Section 5(1)(a) of the Copyright Act provides:

5(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:

(a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;

[44] The Plaintiff is a Polish corporation. Counsel for the Moving Parties submits that in order to plead a violation under section 5(1)(a) of the Copyright Act and enforce its copyright in a court in Canada, the Plaintiff would have to be a corporation under the laws of a “treaty country”. At the hearing before me, he asked rhetorically whether Poland is a “treaty country”, suggesting that it is not known whether the Plaintiff even has standing to bring a claim under the Copyright Act. Counsel for the Plaintiff countered the Moving Parties’ question by stating that he is certain that Poland is a “treaty country”.

[45] Section 2 of the Copyright Act specifies that the treaty referenced in section 5(1)(a) is the Berne Convention for the Protection of Literary and Artistic Works, 828 UNTS 221, September 9, 1886, as revised. The Supreme Court of Canada has observed on several occasions that the Copyright Act was originally enacted to implement for Canada the terms of the Berne Convention: see Bishop v Stevens, 1990 75 (SCC), [1990] 2 SCR 467, at 473-74; Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 SCR 231, at para 13.

[46] The World Intellectual Property Organization, of which Canada is a member, administers the Berne Convention, among others. It keeps complete records of each country that has signed, ratified, and proclaimed the treaty into force. As a matter of legal research, it is readily ascertainable that both Poland and Canada have long been “treaty countries” under the Copyright Act – i.e. members of and adherents to the Berne Convention. Poland brought the Berne Convention into force on January 28, 1920, and Canada brought it into force on April 10, 1928.

[47] The Plaintiff therefore does have standing to enforce a claim for violation of the Copyright Act.

[48] The evidence in the record shows that the current design of the box packaging for Sesame Snaps was in use from at least 2006. Accordingly, the Plaintiff has had a right to copyright protection from that time forward.

[49] As already indicated, the Defendant ceased being a distributor of the Plaintiff’s product in 2010 and Exclusive ceased acting as distributor of the Plaintiff’s product in 2013. Once the distributorship relationships ended, the Defendant and Exclusive, and their respective principals, acted through K-Max 2013 to use the Plaintiff’s box packaging design for their own box packaging of Classic Sesame. The Classic Sesame box design is difficult to distinguish from the Sesame Snap box design.

[50] The Defendant registered a copyright of the Classic Sesame box design in 2010. That registration, however, does not diminish the already established copyright in this design held by the Plaintiff. Section 13(1) of the Copyright Act makes it clear that, “the author of a work shall be the first owner of the copyright therein.” Here, the first owner is the Plaintiff.

[51] Further, section 3(1) provides that the author as owner of the copyrighted work has exclusive rights therein: “For the purposes of this Act, ‘copyright’, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever…” The Plaintiff’s exclusivity is not trumped by the Defendant’s subsequent registration under the Copyright Act. The Plaintiff retains its exclusive rights to the box design.

[52] The Moving Parties’ continued use of the Classic Sesame box design constitutes a violation of the Plaintiff’s copyright.

V. Damages

[53] Counsel for the Moving Parties submits that the Plaintiff has not proved its damages, and that there is no entitlement to a remedy in the absence of proven damages. Counsel for the Plaintiff counters that once confusion between the two products and their trademarks and packaging designs is established, damages can be presumed.

[54] The Moving Parties put their argument about damages primarily in respect of the trademark issue and the tort of passing off. I would point out that the copyright violation on its own gives rise to the need for injunctive relief. That said, the Moving Parties’ point with respect to the passing off and trademark claims runs counter to remedial principles long recognized by the law. The very purpose of equitable relief is to fill in where damages are an inadequate remedy – to “do more perfect and complete justice” than is available at common law: Wilson v Northampton and Banbury Junction Railway Co. (1874), 9 Ch App 279, at 284.

[55] As pointed out in Kraft Jacobs Suchard (Schweiz) AG v Hagemeyer Canada Inc., 1998 CarswellOnt 405, at para 49 (Ont Gen Div), section 53.2 of the Act provides,

Where a court is satisfied, on application of any interested person, that any act has been done contrary to this Act, the court may make any order that it considers appropriate in the circumstances, including an order providing for relief by way of injunction and the recovery of damages or profits and for the destruction, exportation or other disposition of any offending wares, packages, labels and advertising material and of any dies used in connection therewith.

[56] The Moving Party’s argument in respect of the need to prove damages has a “gotcha” quality about it.

[57] In the first place, the position taken by the Moving Parties would require the Plaintiff to prove a negative: how many sales did the Plaintiff not have due to the marketing of a product readily confused by the consumer with its own? Moreover, it belies the Moving Parties’ own evidence from Picard that the former Sesame Snap customers were transitioned by the Moving Parties into buying Classic Sesame. The damages are as obvious to the Moving Parties as to anyone.

[58] Most important, however, is that the Moving Parties were not ordered to pay any damages and are not moving against any assessment of damages. They have no actual interest in the question that they raise. They raise it strictly as a technical matter, hoping it will bar the Plaintiff from the one remedy – an injunction – where a calculation of damages is not otherwise required.

[59] The Moving Parties have no basis for their damages argument. At the very least, nominal damages here have been established by the Plaintiff. The Moving Parties themselves have profited from the passing off of their product for the Plaintiff’s, and continued to do so until the injunction was imposed. To say that no injunction can be imposed in order to put an end to the proven wrong unless and until the Plaintiff specifically quantifies its actual losses is to work an injustice.

[60] “It is a settled and invariable principle…that every right when withheld must have a remedy, and every injury its proper redress”: 1 W. Blackstone, Commentaries on the Laws of England 23. The tortious conduct engaged in by the Moving Parties calls for the equitable relief of an injunction.

VI. Disposition

[61] The motion is dismissed. The judgment of Mew J. dated January 22, 2015 remains unchanged and in force.

[62] Counsel for the Moving Parties and counsel for the Plaintiff have jointly advised me that their clients agree that the amount of costs will be $25,000, regardless of the outcome of this motion. I pause here to observe that this cooperation among the parties and their counsel is very much appreciated by the court.

[63] The Moving Parties shall pay the Plaintiff costs in the all-inclusive amount of $25,000.

Morgan J.

Date: May 19, 2015