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

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

The motion to strike was dismissed because it was not clear and obvious that s.7(a) of the Trade-marks Act could not apply to matters involving industrial designs; prior jurisprudence shows s.7(a) has been applied in patent and copyright contexts and the pleadings therefore cannot be struck under Rule 221(1)(a) for disclosing no reasonable cause of action.

Citation
2002 FCT 179
Parties
Plaintiff (defendant by Counterclaim): Benisti Import-Export Inc.; Defendant (plaintiff by Counterclaim): Modes Txt Carbon Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
19 February 2002
Procedural Posture
Federal Court Civil Intellectual Property Dispute / Motion to Strike Under Rule 221 (pre Trial Interlocutory)
Outcome
Motion to strike dismissed with costs; plaintiff granted thirty days to serve and file reply and defence to counterclaim.
Legal Topics
Strike Out, Misrepresentation, Trade Marks Act S.7(a), Constitutional Jurisdiction
Source Language
English
Intellectual Property Trade Marks Law Industrial Design Civil Procedure Strike Out Misrepresentation Trade Marks Act S.7(a) Constitutional Jurisdiction

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Benisti Import-Export Inc.

Plaintiff (defendant by Counterclaim)

Modes Txt Carbon Inc.

Defendant (plaintiff by Counterclaim)

Procedural Posture

Federal Court Civil Intellectual Property Dispute / Motion to Strike Under Rule 221 (pre Trial Interlocutory)

Legal Issues

  1. 1 Whether paragraphs of the counterclaim disclose a reasonable cause of action under Rule 221(1)(a)
  2. 2 Whether s.7(a) of the Trade-marks Act can apply to matters relating to industrial designs and other intellectual property beyond trade-marks
  3. 3 Whether the pleading improperly invades provincial jurisdiction

Ratio Decidendi

The motion to strike was dismissed because it was not clear and obvious that s.7(a) of the Trade-marks Act could not apply to matters involving industrial designs; prior jurisprudence shows s.7(a) has been applied in patent and copyright contexts and the pleadings therefore cannot be struck under Rule 221(1)(a) for disclosing no reasonable cause of action.

Court Disposition

Motion to strike dismissed with costs; plaintiff granted thirty days to serve and file reply and defence to counterclaim.

Orders

  • Motion to strike dismissed with costs
  • Plaintiff shall have thirty (30) days from date of order to serve and file its reply and defence to the counterclaim