Gap, Inc. v. G.A.P. Adventure Inc.

Gap, Inc. v. G.A.P. Adventure Inc.

The appeal was dismissed because the Case Management Judge correctly applied the governing test and was not clearly wrong: the proposed amendment reasonably fell within the scope of the original pleadings (retail store services including online activities), the appellant failed to demonstrate irreparable prejudice that could not be compensated by costs, and permitting the amendment served the interests of justice by avoiding multiplicity of proceedings.

Citation
2011 FC 1526
Parties
Plaintiff / Defendant by Counterclaim: THE GAP, INC.; Plaintiff / Defendant by Counterclaim: GAP (ITM) INC.; Plaintiff / Defendant by Counterclaim: GAP (CANADA) INC.; Defendant / Plaintiff by Counterclaim: G.A.P. ADVENTURES INC.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
28 December 2011
Procedural Posture
Civil Intellectual Property (trademark) / Interlocutory Appeal of Case Management Judge Order Regarding Leave to Amend Pleadings; Pre Trial (trial Set in Six Months)
Outcome
Appeal dismissed; leave to amend statement of claim granted; defendant granted leave to file amended statement of defence; plaintiff awarded costs of the appeal.
Legal Topics
Amendment of Pleadings, Leave to Amend, Prejudice and Costs, Scope of Injunction, Admissions and Withdrawal
Source Language
English
Intellectual Property Trademarks Civil Procedure Injunctions Appeals E Commerce Amendment of Pleadings Leave to Amend +3 more

Case Brief

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Parties

THE GAP, INC.

Plaintiff / Defendant by Counterclaim

GAP (ITM) INC.

Plaintiff / Defendant by Counterclaim

GAP (CANADA) INC.

Plaintiff / Defendant by Counterclaim

G.A.P. ADVENTURES INC.

Defendant / Plaintiff by Counterclaim

Procedural Posture

Civil Intellectual Property (trademark) / Interlocutory Appeal of Case Management Judge Order Regarding Leave to Amend Pleadings; Pre Trial (trial Set in Six Months)

Legal Issues

  1. 1 Whether the Case Management Judge erred in granting leave to amend the statement of claim
  2. 2 Whether the proposed amendment is inconsistent with or unsupported by the body of the claim
  3. 3 Whether the amendment permits withdrawal of a substantive admission

Ratio Decidendi

The appeal was dismissed because the Case Management Judge correctly applied the governing test and was not clearly wrong: the proposed amendment reasonably fell within the scope of the original pleadings (retail store services including online activities), the appellant failed to demonstrate irreparable prejudice that could not be compensated by costs, and permitting the amendment served the interests of justice by avoiding multiplicity of proceedings.

Court Disposition

Appeal dismissed; leave to amend statement of claim granted; defendant granted leave to file amended statement of defence; plaintiff awarded costs of the appeal.

Orders

  • The appeal of the decision of the Case Management Judge permitting the plaintiffs to amend their statement of claim is dismissed.
  • The defendant is granted leave to file an amended statement of defence within a period to be agreed upon by the parties or, failing agreement, as set by the Case Management Judge.