In 2045978 Ontario Inc. (Chaps The Original) v. Chaps Aldershot (2009 FC 872), the Federal Court allowed a motion for summary judgment in a dispute between two restaurant owners. The Court held the evidence clearly indicated infringement and passing-off by defendant Chaps Aldershot, as defined by ss. 19, 20 and s.7(b) of the Trade-Marks Act, respectively.
The plaintiff had operated a restaurant under the name “Chaps The Original” since 1981, and helds a trade-mark for the name “CHAPS” in restaurant services registered in 2005. In 2006, defendant Chaps Aldershot began operating a restaurant 6km away, under the name “Lezley’s Chaps”. Chaps the Original subsequently filed suit, seeking a declaratory judgment of infringement and passing off, and, following a case management timetable, moved for summary judgment after discovery had been completed.
Chaps Aldershot’s responding affidavit was filed six days late, and Chaps the Original objected to it being included in evidence. While the Court did throw the affidavit out agreeing that not enough explanation had been provided, it also held that had the affidavit been admitted, it would have held little weight due to its contradiction of admissions made at discovery.
Given the inability of the respondents to put evidence forward that there was a genuine issue for trial, the Court noted that they would have been justified in simply granting summary judgment immediately. Despite this, the Court found evidence of passing off, as the defendants directed public attention to their restaurants so as to cause confusion, and that the defendant infringed the plaintiff’s CHAPS trade-mark. The Court granted a permanent injunction against the defendant.
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