The Kun Shoulder Rest Inc. v. Joseph Kun Violin and Bow Maker Inc.
T-118-97
Nadon J.
13/2/97
6 pp.
Application for interim injunction to prevent defendants from selling, advertising, distributing violin, viola shoulder rests bearing or associated with names "Kun", "Joseph Kun" at Frankfurt Music Fair in Frankfurt, Germany commencing February 26, 1997-Application of three-part test enunciated in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311-(1) Serious issue to be tried, if only as to Court's jurisdiction to hear issues-(2) Dilution and resulting loss of distinctiveness of "Kun" name in relation to production, distribution of violin, viola shoulder rests rendering "Kun" name unregistrable and/or expungable from trade mark register-By rendering "Kun" no longer distinctive to single manufacturer of shoulder rests, defendants taking from plaintiff goodwill on which company based-Loss of distinctiveness of name "Kun" leading to loss of trade mark and consequential loss of goodwill irreparable harm-Sufficient evidence to allow inference continuance of two "Kun" companies in shoulder rest business may well eradicate distinctiveness of mark and subsequently erase all goodwill plaintiff creating which attracts purchasers specifically to plaintiff company-(3) Harm done to plaintiff if injunction refused greater than harm done to defendants if injunction allowed-Defendants restrained from promoting, selling new "Kadenza" shoulder rest in association with name "Kun", although Michael, Marika Kun not prevented from attending Frankfurt Fair, promoting "Kadenza" within parameters of this restraint.