Zoe International Distributing Inc. v. Smoke Arsenal Inc., 2026 FC 792
Justice Fothergill - 2026-06-12
Read full decision. Automatically generated summary:
In separate Orders, the CMJ struck portions of the Statements of Defence of the Defendants that asserted the defence of misuse of copyright, but granted leave to amend. The CMJ also dismissed the Plaintiff’s motion to strike the Defendants’ Counterclaims for false and misleading statements under s 7(a) of the Trademarks Act. The appeal is allowed in part. The CMJ properly struck the Defendants’ defences of misuse of copyright with leave to amend. Misuse of copyright is a novel but arguable defence. However, the Defendants failed to plead sufficient material facts in support. The defects in the Defendants’ pleadings were potentially curable, and accordingly the CMJ was right to grant leave to amend. The CMJ should have granted the Plaintiff’s motion to strike the Defendants’ Counterclaims for false and misleading statements under s 7(a) of the Trademarks Act, with leave to amend. The Defendants failed to plead that the allegedly misleading statements were about their intellectual property. This is fatal to a cause of action under s 7(a) of the Trademarks Act, but the defect may be curable by amendment.
Decision relates to:
- T-1125-24 - Zoe International Distributing Inc. v. Vanpak Limited
- T-2111-23 - Zoe International Distributing Inc. doing business as HBI Canada v. Smoke Ar