National Hockey League v. Centre Ice Ltd.
A-696-93
Heald J.A.
24/1/94
9 pp.
Appeal from trial judgment [1994] 2 F.C. D-9 granting respondent Centre Ice interlocutory injunction prohibiting sale, advertising of wares by appellant under name "Center Ice", "Authentic Center Ice Collection", or any other colourable imitation of trade mark "Centre Ice" in defined portion of Alberta -- Appellant, NHL Services Inc., claiming ownership of trade mark "Center Ice" -- Respondent operating retail store in Calgary specializing in sale of hockey equipment, but also selling other sports clothing under trade mark "Centre Ice" -- Extensively advertising, promoting "Centre Ice" trade mark, logo in Alberta, Manitoba -- Revenues and sales of "Centre Ice" wares, services rising from $250,000 in 1987 to $1 million in 1991 -- Motions Judge finding appellants' use of trade name "Center Ice" confusing to public and such confusion resulting in loss of goodwill not compensable in damages -- Whether irreparable harm -- Appeal allowed -- Review of case law on irreparable harm -- Finding of confusion between competing products not necessarily leading to loss of goodwill not compensable in damages -- Good Neighbor Fast Food Stores Ltd. v. Petro-Canada Inc. (1987), 82 A.R. 79 (C.A.), wherein loss of goodwill, when suffered by commercial firm in ordinary course of business, found to be fairly readily calculable, and therefore compensable in damages, persuasive -- Thus, even if show loss of goodwill through use of confusing mark, irreparable harm not proven because such loss fairly compensable in damages -- Loss of goodwill not established on record herein -- No evidence of loss of even single sale -- No evidence establishing respondent's reputation impeached or lessened in any way by appellants' actions -- Only evidence of irreparable harm contained in statement in affidavit, unsupported by evidence -- Merely supported by confusion established by evidence -- Irreparable harm not implied wherever confusion shown -- Motions Judge erred in finding irreparable harm based on affidavit -- Also erred in inferring loss of goodwill not compensable in damages from fact confusion proven -- Case law establishing confusion not per se resulting in loss of goodwill, and loss of goodwill not per se establishing irreparable harm not compensable in damages -- Must be clear evidence of loss of goodwill and resulting irreparable harm -- In absence of clear evidence irreparable harm would result, interlocutory injunction should not be issued.