Stephanie Margarete Hedwig Legdon

Following dismissal of a motion for an interim injunction, the successful defendants sought substantial indemnity costs of $26,270.93 for the interlocutory proceeding.

The court acknowledged the general presumption that the successful party is entitled to costs and that interlocutory costs are ordinarily payable forthwith.

However, given that the underlying dispute raised a serious issue to be tried concerning alleged use of a protected confectionery recipe and related marketing practices, the court concluded that the justice of the case warranted a different approach.

Costs of the motion were therefore reserved to the trial judge, who would be better positioned to assess entitlement in the context of the full record.

The plaintiff sought an interlocutory injunction restraining the defendants from using the term “mint smoothie” to describe a chocolate confection, alleging trademark infringement and passing off under the Trademarks Act.

The court accepted that there was a serious issue to be tried given the parties’ relationship, the defendants’ marketing references to family recipes, and the existence of a registered trademark.

However, the plaintiff failed to demonstrate irreparable harm as required by the RJR‑MacDonald test.

Evidence of marketplace confusion was largely hearsay and insufficient, and any potential damages could be quantified.

The balance of convenience also favoured the defendants because the disputed product represented a significant portion of their sales.

The motion for an interlocutory injunction was dismissed.