Figgie International Inc. v. Citywide Machine Wholesale Inc.
T-1200-92
Rouleau J.
23/7/92
10 pp.
Application for interlocutory injunction restraining respondents from selling vacuum cleaners -- Applicant Fortune 500 company with annual sales of $1.24 billion -- One division manufacturing, distributing Tri Star vacuum cleaners, having Canadian sales of $2.5 million -- Machine consisting of egg-shaped canister and extensions -- Sold door-to-door through network of distributors -- "Tri Star" registered trade mark -- Respondent Puri, president of respondent Citywide, distributor for British Columbia, Saskatchewan, Manitoba 1978-1990 -- Contract not renewed in 1990 in circumstances giving rise to action in British Columbia Supreme Court -- Other respondents former distributors having terminated agreements in 1992 -- Respondent Puri ascertaining patent on "Tri Star" expired -- Developing, manufacturing, distributing vacuum cleaner under registered trade mark "Miracle-Star", making considerable investment -- Evidence mechanical design substantially similar to "Tri Star" -- Appearance similar in having egg-shaped canister, decorative wings, name in gold script -- Former "Tri Star" distributors joining sales force -- Whether infringing trade mark and distinguishing guise -- Whether copying applicant's sales technique -- Respondent changing trade mark to "Miracle Mate", altering exterior appearance of machine by lengthening canister, removing wings, undertaking to keep accounting of all sales -- Serious issue to be tried whether ovoid canister distinguishing guise, whether passing-off -- Balance of convenience -- Vacuum cleaners minor part of applicant's business, loss of sales not putting business in jeopardy -- Recruiting distributors not undermining distribution network, as little allegiance by sales agents in the sector -- Injunction would interfere with respondent Puri's young business in which life savings invested, result in bankruptcy, determine ultimate issue -- Application dismissed.