Distrimedic Inc. v. Dispill Inc.

Distrimedic Inc. v. Dispill Inc.

The court denied most particulars because the plaintiff already had sufficient information to know whether its product infringed and the affidavits did not establish a need for further particulars; the court struck all allegations in the defence that relied on a purported disclaimer because CIPO had refused to...

Source-derived case information.

Citation
2006 FC 832
Parties
Plaintiff and Defendant by Counterclaim: Distrimedic Inc.; Defendant: Dispill Inc.; Defendant and Plaintiff by Counterclaim: Richards Packaging Inc.; Defendant by Counterclaim: Robert Poirier; Defendant by Counterclaim: Claude Filiatrault
Court
Federal Court
Jurisdiction
Canada
Judgment Date
29 June 2006
Procedural Posture
Patent Action for Declaration of Non Infringement With Counterclaim for Infringement (and Related Trademark/competition Claims) / Motion for Particulars and to Strike Pleadings (prothonotary Decision)
Outcome
Motion partially granted. Limited particulars ordered; multiple allegations and paragraphs in the defence struck as frivolous, immaterial or disclosing no reasonable cause of action; leave to amend limited to paragraph 30; no costs awarded.
Legal Topics
Declaration of Non Infringement, Patent Disclaimer (s.48 Pat. Act), Judicial Review of CIPO Decision, Motion for Particulars, Striking Pleadings, Passing Off, Trade Mark Infringement, Standing Under S.60(2) Patent Act
Source Language
english
Patent Law Trade Marks Law Competition Law Copyright Civil Procedure Administrative Law Declaration of Non Infringement Patent Disclaimer (s.48 Pat. Act) +6 more

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Parties

Distrimedic Inc.

Plaintiff and Defendant by Counterclaim

Dispill Inc.

Defendant

Richards Packaging Inc.

Defendant and Plaintiff by Counterclaim

Robert Poirier

Defendant by Counterclaim

Claude Filiatrault

Defendant by Counterclaim

Procedural Posture

Patent Action for Declaration of Non Infringement With Counterclaim for Infringement (and Related Trademark/competition Claims) / Motion for Particulars and to Strike Pleadings (prothonotary Decision)

Legal Issues

  1. 1 Whether particulars must be ordered to permit intelligible response to pleadings
  2. 2 Whether allegations premised on a purported disclaimer filed with CIPO should stand when CIPO refused registration and judicial review is pending
  3. 3 Whether specific paragraphs of the defence and counterclaim are frivolous, immaterial or disclose no reasonable cause of action and should be struck under the Federal Courts Rules

Ratio Decidendi

The court denied most particulars because the plaintiff already had sufficient information to know whether its product infringed and the affidavits did not establish a need for further particulars; the court struck all allegations in the defence that relied on a purported disclaimer because CIPO had refused to register the disclaimer and, absent court intervention in the pending judicial review, there was no valid disclaimer; the court struck additional trademark/competition allegations as disclosing no reasonable cause of action or being frivolous/immaterial; paragraph 16 (standing issue) was struck as plain and obvious given subsequent facts; limited particulars and a single permitted...

Court Disposition

Motion partially granted. Limited particulars ordered; multiple allegations and paragraphs in the defence struck as frivolous, immaterial or disclosing no reasonable cause of action; leave to amend limited to paragraph 30; no costs awarded.

Orders

  • Richards Packaging to provide within 20 days particulars: (1) how the defendants by counterclaim authorized the copy of the Dispill Label Form and (2) a copy of the form that appears when the icon using the word DISTRIMEDIC is selected.
  • Paragraph 13 of the defence and the underlined text in paragraphs 14, 18(a), 18(c)(i) and 32 (all allegations premised on the November 8, 2005 disclaimer) are struck pursuant to Federal Courts Rules ss.221(1)(b) and (c).