Coca-Cola Ltd. v. Pardhan
A-869-97
Strayer J.A.
12/4/99
17 pp.
Appeal from Trial Division decision ((1997), 77 C.P.R. (3d) 501) striking out appellants' statement of claim in action for damages for infringement of trade marks, depreciation of value of goodwill attached to trade marks-Appellants Coca-Cola Ltd. (CCL), Coca-Cola Bottling Ltd. (CCB) respectively owner or licensor of Coca-Cola trade marks registered in Canada, licensee-manufacturer of Coca-Cola products in Canada-Respondents distribute, store, ship, transship, export from Canada products manufactured by CCB-Respondents pleading over now-impugned statement of claim-Motions Judge finding paragraphs 17, 18, 19, 21, 22 of appellants' statement of claim disclosing no reasonable cause of action-Application to strike pleading should normally be brought before pleading over it, but can be brought at any time under R. 419(a) on basis pleading discloses no reasonable cause of action-Motions Judge properly limiting consideration of motion to that ground-Finding no undue delay, declining to refuse remedy on that ground-Discretionary decision, no basis on which Court should reverse it-Motions Judge finding no "use" by respondents because of doctrine of first use: once appellants' goods, bearing appellants' trade mark, sold by them in course of trade, subsequent resale of same goods bearing same trade mark could not constitute use, actionable use-Motions Judge concluding respondents' activities not within terms of Trade-marks Act, ss. 4(3), 19, 20, 22(1), each of which requires "use" by defendant for liability to arise-Essence of law of trade marks to prevent deception as to provenance of goods, services where originator of goods, services adopted distinguishing mark for them-View of "use" reinforced by case law which emphasizes deception as necessary element of infringement-No "use" within meaning of Act on part of respondents-Action against them based on Act, ss. 4(3), 19, 20, 22(1) could not succeed-Motions Judge finding paragraphs 17, 18, 19, 21, 22 disclosing no reasonable cause of action-Striking out action as core of action disappeared-Fair assessment of statement of claim-No error in principle on part of Motions Judge in striking whole of statement of claim-No indication in material appellants asked for leave to amend statement of claim-Matter for discretion of Motions Judge, no grounds of reviewable error in exercise of discretion-Appeal dismissed-Federal Court Rules, C.R.C., c. 663, R. 419-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 4(3), 19, 20, 22(1).