The High Cost of Particulars
Abercrombie & Fitch Co. et al. v. Giant Tiger Stores Ltd. et al. 2009 FC 492 (Shore, J.)

May 12, 2009

Brian P. Isaac and Kevin K. Graham for the Plaintiffs/Respondents, Abercrombie & Fitch Co. et al.
Kevin L. LaRoche and Kathleen Lemieux for the Defendants/Appellants, Giant Tiger Stores Ltd. et al.

This was an appeal of a Prothonotary’s decision dismissing a motion for particulars in the context of an action for trade-mark infringement and passing off.

The Plaintiffs’ statement of claim alleged that all garments to which their trade-marks are applied were manufactured by or for the Plaintiffs under licence. The Defendants requested a list of authorized manufacturers before serving and filing their defence. However, the Court noted that the Defendants did not submit any evidence before the Prothonotary to demonstrate the necessity of that information. In the absence of any such evidence, the Court ruled that the Prothonotary’s decision could not be considered to have been “clearly wrong” and the appeal was dismissed.

The Court ordered the Defendants to pay the costs of the appeal at the highest scale under Column IV. Without further explanation, Justice Shore indicated that the Defendants’ actions unnecessarily increased the cost of litigation because they had not provided the Plaintiffs with details of their sales of allegedly counterfeit goods and had not provided an undertaking to cease selling them.

By: Greg Moore, Goudreau Gage Dubuc LLP