Homelife Realty Services Inc. v. Sears Canada Inc.
T-1069-95
Teitelbaum J.
16/1/96
12 pp.
Application by defendants for leave to amend statement of defence and for summary judgment under R. 432.1 dismissing plaintiff's passing off action, trademark infringement action-Plaintiff's trademarks registered for use in association with real estate brokerage services-Sears Roebuck filing application to register trademark "Sears Homelife Furniture Store"-Embarking on standalone furniture concept in Canada-Plaintiff commencing action, by way of statement of claim, alleging passing off by defendants, depreciation of goodwill, infringement of "Homelife" trademarks-Filing application for summary judgment, motion for interlocutory injunction-Defendants agreeing not to operate stand-alone furniture stores in Canada in association with trademark "Homelife" pending trial or final disposition of matter-Cause of action can no longer exist as plaintiff's action founded on threat that no longer exists-Summary judgment should only be granted where facts clear-Parties bound by agreement, should be able to rely on terms and conditions-According to agreement, matters to be determined at trial-Credibility issues to be determined-Conflict in evidence should be resolved by trier of fact, with benefit of viva voce evidence and crossexamination-Not just to grant defendants' application for summary judgment-Court needs more than just reasonable basis to grant quia timet injunction-Defendants following through with intention as expressed in agreement, with respect to not using "Homelife" name-No basis upon which to grant plaintiff's injunction-Defendants' application for summary judgment dismissed-Plaintiff's request for injunction denied-Defendants' application to amend statement of defence allowed-Federal Court Rules, C.R.C., c. 663, R. 432.1 (as enacted by SOR/94-41, s. 5).