Stork Market Inc v. 1736735 Ontario Inc., 2017 FC 779
Justice Southcott - 2017-08-22
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This decision results from a trial of claims and counterclaims related to intellectual property rights between two companies, and their principals, active in the lawn sign business in the Greater Toronto Area and other parts of southern Ontario. Specifically, the Plaintiffs claim infringement of registered trade-marks of two images of a stork holding a baby above its head under a banner announcing, respectively, “It’s a Girl” and “It’s a Boy”. The Plaintiffs also assert a claim for passing off under s. 7(b) of the Trade-marks Act and a claim for copyright infringement. These claims all arise from the Defendants’ use and advertisement of lawn signs displaying images of a stork in a similar posture. The Defendants deny that their stork images infringe the Plaintiffs’ rights and seek a declaration that the Plaintiffs’ trade-mark registrations are invalid and an Order expunging those registrations. For the reasons explained below, I have found that the Plaintiffs’ trade-mark registrations are valid and have been infringed by the corporate Defendant, contrary to the Trade-marks Act. The claim by the corporate Plaintiff for passing off under s. 7(b) of the Trade-marks Act also succeeds, again against the corporate Defendant. The Plaintiffs have not convinced me that the individual Defendant has any personal liability for the claims under the Trade-marks Act. Nor have they convinced me that the Defendants have infringed the copyright of the individual Plaintiff in his stork images. The Plaintiffs’ success in their trade-mark infringement and passing off claims results in an award of $30,000 damages to the corporate Plaintiff, injunctive relief and an Order for destruction or delivery up under s. 53.2 of the Trade-marks Act. The claims and counterclaims are otherwise dismissed.
Decision relates to:
- T-1447-11 - THE STORK MARKET INC., ET AL v. 1736735 ONTARIO INC., ET AL