Fednav Ltd. v. Fortunair Canada Inc.
T-1717-94
Noël J.
22/12/94
10 pp.
Application for interlocutory injunction to prevent infringement of Fednav's trade mark pending trial judgment -- Fednav's trade mark geometric shapes, rectangles, forming red-coloured "F" with "squar-ish" geometrically stylized quarter red-coloured maple leaf imposed behind upper left side of F -- Fortunair's trade mark upper case italicized dark blue- coloured "F" with half red-coloured classical maple leaf imposed behind upper left side of "F" -- Fednav one of North America's largest shipping companies with large array of subsidiaries, sister companies -- F & Design prominently displayed internally and around world -- Fortunair new airline company with only one airplane -- Prominently displaying F & Leaf on airplane, ticket offices in Mirabel Airport, baggage tickets, in advertising, promotion of airline chartering services -- Fortunair using allegedly confusing trade mark on wares, services -- As both companies in transport business, some basis in fact parties operating in same area -- High likelihood of confusion if two designs considered from perspective of average consumer having vague or imperfect recollection of first trade mark -- Differences between designs not significant -- Principal offices of both companies in Montréal, increasing likelihood consumer would think airline carrier, cargo shipper affiliated -- Plaintiff's claims designs used in association with businesses in same area and likelihood consumers would be led to believe both services offered by same person not frivolous, vexatious -- Serious question raised -- Fednav alleging Fortunair's use of its confusing trade mark while undergoing well-publicized financial difficulties harming Fednav's reputation -- Even if harms complained of compensable by way of damages, irreparable by virtue of fact Fortunair fledgling, financially unstable company unlikely to be in position to pay damage award against it -- Even where, theoretically, damages could furnish adequate compensation, if Court of opinion defendant will not be able to meet damage award, then harm will prove to be irreparable -- Unlikely Fortunair would be able to pay award of damages should it be found liable to plaintiff -- Uncompensated harm irreparable -- Plaintiff's undertaking to pay any damages should defendant eventually succeed not in issue -- Defendant unable to provide such undertaking -- Balance of convenience favouring issuance of injunction -- Delay of ninety days extended on consent to allow defendant to comply with injunction if granted.