Benisti Import-Export Inc. v. 150512 Canada Inc.

Benisti Import-Export Inc. v. 150512 Canada Inc.

The court held that identification of the principal areas of an industrial design is a factual matter akin to identifying the substance of an invention and therefore particulars must be provided; paragraphs 32 and 39 were improperly pleaded regarding post-registration conduct and were struck out, but the defendant was granted leave to amend to plead such matters in compliance with Rules 419-422; costs were awarded to the plaintiff.

Citation
2002 FCT 197
Parties
Plaintiff (cross Defendant): BENISTI IMPORT-EXPORT INC.; Defendant (cross Plaintiff): 150512 CANADA INC.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
25 February 2002
Procedural Posture
Industrial Design Infringement Motion for Particulars and Strike Out / Interlocutory Motion
Outcome
Particulars ordered; paragraphs 32 and 39 struck out with leave to amend; costs awarded to plaintiff.
Legal Topics
Particulars, Strike Out, Costs, Procedure Under Federal Court Rules, Substance of Invention
Source Language
English
Intellectual Property Industrial Design Civil Procedure Particulars Strike Out Costs Procedure Under Federal Court Rules Substance of Invention

Case Brief

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Parties

BENISTI IMPORT-EXPORT INC.

Plaintiff (cross Defendant)

150512 CANADA INC.

Defendant (cross Plaintiff)

Procedural Posture

Industrial Design Infringement Motion for Particulars and Strike Out / Interlocutory Motion

Legal Issues

  1. 1 Whether the defendant must provide particulars identifying the principal areas of the registered industrial design
  2. 2 Whether paragraphs 32 and 39 of the defence and counterclaim should be struck out
  3. 3 Whether costs should be awarded for the instant motion

Ratio Decidendi

The court held that identification of the principal areas of an industrial design is a factual matter akin to identifying the substance of an invention and therefore particulars must be provided; paragraphs 32 and 39 were improperly pleaded regarding post-registration conduct and were struck out, but the defendant was granted leave to amend to plead such matters in compliance with Rules 419-422; costs were awarded to the plaintiff.

Court Disposition

Particulars ordered; paragraphs 32 and 39 struck out with leave to amend; costs awarded to plaintiff.

Orders

  • Defendant to produce the particulars identifying the principal areas of industrial design No. 92684 and which areas are shown in Appendix A within 20 days of the order
  • Paragraphs 32 and 39 of the defence and counterclaim are struck out