Abercrombie & Fitch Co. v. Giant Tiger Stores Limited

Abercrombie & Fitch Co. v. Giant Tiger Stores Limited

The appellants failed to discharge the onus to show the requested particulars were necessary for pleading and not within their knowledge; the Prothonotary’s refusal to order the particulars was not shown to be clearly wrong; identification of authorised manufacturers was unnecessary at this stage and could prejudice the respondents; therefore the appeal is dismissed and costs awarded.

Citation
2009 FC 492
Parties
Plaintiff/respondent: Abercrombie & Fitch Co.; Plaintiff/respondent: Abercrombie & Fitch Trading Co.; Plaintiff/respondent: AFH Canada Stores Co.; Defendant/appellant: Giant Tiger Stores Limited; Defendant/appellant: G.T. Wholesale Limited; Defendant/appellant: Tora Newmarket Limited (doing business as Giant Tiger Store 146); Defendant/appellant: Tora Mississauga Limited (doing business as Giant Tiger Store 152); Defendant/appellant: John Doe and all others operating or supplying giant tiger stores who have sold, offered for sale, advertised or distributed products in association with the trade-marks of the Plaintiffs
Court
Federal Court
Jurisdiction
Canada
Judgment Date
12 May 2009
Procedural Posture
Trademark Infringement and Passing Off / Appeal From Interlocutory Order on Particulars by Prothonotary
Outcome
Appeal dismissed with costs.
Legal Topics
Discovery, Particulars, Counterfeit Goods, Passing Off, Costs
Source Language
English
Intellectual Property Trade Mark Law Civil Procedure Discovery Particulars Counterfeit Goods Passing Off Costs

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Parties

Abercrombie & Fitch Co.

Plaintiff/respondent

Abercrombie & Fitch Trading Co.

Plaintiff/respondent

AFH Canada Stores Co.

Plaintiff/respondent

Giant Tiger Stores Limited

Defendant/appellant

G.T. Wholesale Limited

Defendant/appellant

Tora Newmarket Limited (doing business as Giant Tiger Store 146)

Defendant/appellant

Tora Mississauga Limited (doing business as Giant Tiger Store 152)

Defendant/appellant

John Doe and all others operating or supplying giant tiger stores who have sold, offered for sale, advertised or distributed products in association with the trade-marks of the Plaintiffs

Defendant/appellant

Procedural Posture

Trademark Infringement and Passing Off / Appeal From Interlocutory Order on Particulars by Prothonotary

Legal Issues

  1. 1 Whether the plaintiffs must identify authorized manufacturers in particulars
  2. 2 Whether the Prothonotary’s refusal to order particulars was clearly wrong
  3. 3 Whether the requested particulars were necessary for pleading and not within the appellants' knowledge

Ratio Decidendi

The appellants failed to discharge the onus to show the requested particulars were necessary for pleading and not within their knowledge; the Prothonotary’s refusal to order the particulars was not shown to be clearly wrong; identification of authorised manufacturers was unnecessary at this stage and could prejudice the respondents; therefore the appeal is dismissed and costs awarded.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.
  • Payment of the Respondent’s costs of this appeal to be calculated on the highest scale under Column IV of Tariff B of the Federal Courts Rules payable forthwith by the Appellants.