Benisti Import-Export Inc. v. Modes TXT Carbon Inc.

Benisti Import-Export Inc. v. Modes TXT Carbon Inc.

Motion granted because the designated representative had made numerous undertakings and lacked direct personal knowledge of the relevant 1998 period and of the trademarks and design work, whereas Varda Levy had direct and extensive knowledge as a former employee of the plaintiff and founder of the defendant responsible for product design, satisfying the factors identified in Liebmann and Rule 237(3).

Citation
2004 FC 539
Parties
Plaintiff/defendant by Counterclaim: BENISTI IMPORT-EXPORT INC.; Defendant/plaintiff by Counterclaim: MODES TXT CARBON INC.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
7 April 2004
Procedural Posture
Intellectual Property Infringement (trade Mark and Industrial Design) / Motion Under Rule 237(3) for Continuation of Examination for Discovery / Production of Alternate Corporate Representative
Outcome
Motion granted; costs in the cause.
Legal Topics
Examination for Discovery, Rule 237(3), Corporate Representative, Undertakings, Infringement, Validity Challenge
Source Language
English
Intellectual Property Civil Procedure Trade Mark Law Industrial Design Law Examination for Discovery Rule 237(3) Corporate Representative Undertakings +2 more

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Parties

BENISTI IMPORT-EXPORT INC.

Plaintiff/defendant by Counterclaim

MODES TXT CARBON INC.

Defendant/plaintiff by Counterclaim

Procedural Posture

Intellectual Property Infringement (trade Mark and Industrial Design) / Motion Under Rule 237(3) for Continuation of Examination for Discovery / Production of Alternate Corporate Representative

Legal Issues

  1. 1 Whether the Court should order a person other than the defendant's designated representative to be examined under rule 237(3)
  2. 2 Whether the designated representative (Mr. Zappitelli) is capable of giving full and prompt discovery by direct knowledge or informed undertakings
  3. 3 Whether Varda Levy is a more suitable corporate representative given her role and knowledge

Ratio Decidendi

Motion granted because the designated representative had made numerous undertakings and lacked direct personal knowledge of the relevant 1998 period and of the trademarks and design work, whereas Varda Levy had direct and extensive knowledge as a former employee of the plaintiff and founder of the defendant responsible for product design, satisfying the factors identified in Liebmann and Rule 237(3).

Court Disposition

Motion granted; costs in the cause.

Orders

  • Defendant shall make Varda Levy available for continuation of the examination for discovery of the defendant and plaintiff shall examine her at a date and place to be determined by the parties but no later than May 7, 2004; any undertaking arising out of this examination must be completed on or before May 25, 2004.
  • Any motion pertaining to the continuation of the defendant's examination shall be served and filed on or before June 9, 2004.