Yesterday, the Federal Court Appeal released a decision in BBM Canada v. Research in Motion Limited, 2011 FCA 151 (A-347-10).The FCA held that a claim for trade-mark infringement could be brought by way of an application rather than an action.

The decision begins with:

The issue to be decided on this appeal is whether a claim made in the Federal Court for damages and other relief flowing from trade-mark infringement, depreciation of goodwill and passing off may be brought by way of an application made under Part 5 of the Federal Courts Rules, SOR/98-106 (Rules). If not, it follows that such a claim can only be brought as an action under Part 4 of the Federal Courts Rules.

The decision is available from the Federal Court website, 2011 FCA 151.