Bauer Hockey Ltd. v. Sport Maska Inc. (CCM Hockey)

Bauer Hockey Ltd. v. Sport Maska Inc. (CCM Hockey)

Leave to amend was granted but only on conditions: the Fifth Amended Statement of Claim must include a clarified paragraph 23 limiting the monetary claim for the new 'causing to be manufactured' cause to a reasonable royalty calculated per skate as specifically pleaded; the new cause is circumscribed to the pleaded facts and any reliance on additional facts not already pleaded and discovered requires a further amendment motion. The original proposed monetary claims were vague and had no reasonable prospect of success absent particularized facts, and the defendant was entitled to costs for opposing the motion.

Citation
2018 FC 1143
Parties
Plaintiff / Defendant by Counterclaim: Bauer Hockey Ltd.; Defendant / Plaintiff by Counterclaim: Sport Maska Inc. DBA CCM Hockey
Court
Federal Court
Jurisdiction
Canada
Judgment Date
13 November 2018
Procedural Posture
Trademark Infringement Motion to Amend Pleadings / Pre Trial (motion to Amend; Discoveries Largely Complete; Trial Scheduled in Approximately 18 Months)
Outcome
Motion granted with conditions; leave to file Fifth Amended Statement of Claim granted; costs awarded to defendant.
Legal Topics
Leave to Amend Pleadings, Extraterritorial Application of Trademark Law, Causing to Be Manufactured, Remedies (royalty Vs Accounting), Discovery and Particularity
Source Language
English
Intellectual Property Trademark Law Civil Procedure Leave to Amend Pleadings Extraterritorial Application of Trademark Law Causing to Be Manufactured Remedies (royalty Vs Accounting) Discovery and Particularity

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Parties

Bauer Hockey Ltd.

Plaintiff / Defendant by Counterclaim

Sport Maska Inc. DBA CCM Hockey

Defendant / Plaintiff by Counterclaim

Procedural Posture

Trademark Infringement Motion to Amend Pleadings / Pre Trial (motion to Amend; Discoveries Largely Complete; Trial Scheduled in Approximately 18 Months)

Legal Issues

  1. 1 Whether plaintiff should be granted leave to amend pleadings at a late pre-trial stage
  2. 2 Whether s 20(1)(b) Trademarks Act covers 'causing to be manufactured' goods never physically present in Canada
  3. 3 Whether proposed pleadings adequately plead material facts to support monetary relief (royalty/accounting)

Ratio Decidendi

Leave to amend was granted but only on conditions: the Fifth Amended Statement of Claim must include a clarified paragraph 23 limiting the monetary claim for the new 'causing to be manufactured' cause to a reasonable royalty calculated per skate as specifically pleaded; the new cause is circumscribed to the pleaded facts and any reliance on additional facts not already pleaded and discovered requires a further amendment motion. The original proposed monetary claims were vague and had no reasonable prospect of success absent particularized facts, and the defendant was entitled to costs for opposing the motion.

Court Disposition

Motion granted with conditions; leave to file Fifth Amended Statement of Claim granted; costs awarded to defendant.

Orders

  • Plaintiff granted leave to serve and file a Fifth Amended Statement of Claim in the form attached to the Notice of Motion, subject to conditions set out by the Court.
  • The Fifth Amended Statement of Claim shall include the amendment to paragraph 23 proposed at the hearing (claiming a reasonable royalty on each skate caused to be manufactured or distributed outside Canada, the precise amount to be the subject of expert evidence).