Astra Aktiebolag v. Inflazyme Pharmaceutical Inc.
T-605-95
Hargrave P.
19/5/95
12 pp.
Motion for particulars regarding allegation of non- registrability and non-distinctiveness of defendant's mark "Pneumocort" (allegation) -- Plaintiffs, owners of mark "Pulmicort", in business of pharmaceuticals for treatment of pulmonary disease -- Defendant filing application to register mark "Pneumocort" for drugs used in treatment of inflammation and asthma -- Plaintiffs' statement of claim for alleged infringement of mark containing allegation -- Defendant not filing affidavit evidence setting out need for further particulars with respect to allegation in order to file defence -- Distinction between particulars needed before pleading and those needed before trial: former required so as to intelligently plead; and latter, much broader, required to properly prepare for trial -- Particulars must be sufficient to: (1) outline case to meet; (2) prevent surprise at trial; (3) enable other side to prepare for trial; (4) limit generality of pleadings; (5) identify issues for trial and for discovery; (6) prevent party from going into additional matters without leave -- Cursory inspection of statement of claim leaving little or no doubt as to plaintiffs' case -- Defendant's argument "distinctive" requirement applying to adoption of trademark to distinguish wares, as opposed to actually distinguishing wares, best explored on discovery or argued at trial -- Test for particulars before defence and for purpose of pleading: whether defendant having enough information to understand plaintiffs' position and to prepare responsive defence (Embee Electronic Agencies Ltd. v. Agence Sherwood Agencies Inc. et al. (1979), 43 C.P.R. (2d) 285 (F.C.T.D.)) -- Particulars contained in statement of claim and attached schedules sufficient to enable defendant to know nature of case to be met; further information constituting fishing expedition and may touch on plaintiff's proof of case -- Statement of claim, taken as whole, specific rather than general and leaving little doubt as to areas to be explored on examination for discovery -- Inclusion by plaintiffs of unspecified sections of Trade-marks Act in statement of claim to broaden scope of attack illusionary as any wish to broaden scope of matter beyond facts as pleaded requiring amendment -- Statement of claim not deficient in particulars -- Motion dismissed -- Trade-marks Act, R.S.C., 1985, c. T-13.