PRACTICE |
Pleadings |
Motion to Strike |
Nintendo of America Inc. v. Battery Technologies Inc.
T-2321-00
2001 FCT 596, Lemieux J.
6/6/01
14 pp.
Nintendo of America (NOA) launching patent infringement, passing-off action against Battery Technologies Inc. (BTI) because of use of trade-mark "Game Buddy" in association with rechargeable batteries, battery rechargers for use with hand-held video games--BTI filing counterclaim--Nintendo moving to strike BTI's entire counterclaim under r. 221(1)(a), (b), (c), claiming BTI's counterclaim discloses no reasonable cause of action, is immaterial, redundant, scandalous, frivolous, vexatious--Neither detrimental reliance on material representation, form of estoppel by conduct, nor acquiescence or laches, forms basis for cause of action, can be wielded as sword--Application in defence only--BTI's counterclaim, looked upon as distinct action, primarily involves claim for damages grounded either in contract or in tort--Matters not claims asserted, except for claim of malicious prosecution, contingent on finding of infringement--Such contingency not transforming counterclaim from sword to shield--BTI's counterclaim for punitive, exemplary damages also beyond jurisdiction of Court as claim grounded in tort resembling malicious prosecution, abuse of process--BTI's counterclaim struck out in entirety--Federal Court Rules, 1998, SOR/98-106, r. 221.