Canadian courts have demonstrated their intention, and ability, to continue to dispense justice despite the pandemic. Adaptability has always been a recognized strength of the common law. In many cases, particularly those involving trademark infringement and false advertising, time is of the essence. There is every reason to expect that justice will continue to be available in a timely and meaningful way.
The recent, but pre-Covid, decision in VisionWerx Investment Properties Inc. v. Strong Industries, Inc., 2020 FC 378, provides an excellent review of the well-established approach to interlocutory injunctions in trademark matters – the bottom line is that they are difficult to obtain. However, the VisionWerx decision also provides a framework that, when adapted to current circumstances, makes it clear that Canadian businesses will continue to have access to expeditious remedies to stop trademark infringement and false advertising in circumstances where there is clear and convincing evidence of irreparable harm.
On the facts, VisionWerx sought an interlocutory injunction to prevent Strong Industries from manufacturing, marketing, advertising and selling the Solstice model hot tub. VisionWerx alleged that the Solstice tub infringed its unregistered distinguishing guise rights in the VisionWerx Spaberry 5.0 tub. An interlocutory injunction is available where there is: (1) a serious issue; (2) clear and convincing evidence of irreparable harm; and (3) the balance of convenience favours this pre-trial remedy. Madam Justice Kane, for the Federal Court, dismissed VisionWerx' application on the basis that there was insufficient evidence of irreparable harm.
The result in VisionWerx is different than the result in the 2017 Sleep Country decision. In Sleep Country, Justice Kane had granted an interlocutory injunction prohibiting use of the phrase "THERE IS NO REASON TO BUY A MATTRESS ANYWHERE ELSE" or any other phrase or mark confusingly similar to "WHY BUY A MATTRESS ANYWHERE ELSE?" as a trade name, trade‑mark, or otherwise. The different results are explained by the different facts and evidence presented in each case.
The problems confronting many trademark owners and advertisers today are very different. Pop-up sites selling unauthorized or counterfeit products are proliferating. Fortunately, the Courts remain open for business and the law provides an effective remedy to quickly stop unlawful behaviour.
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