PRACTICE
Appeals and New Trials
Motion under Federal Courts Rules, rr. 54, 343 for determination of appeal book content as result of appeal, cross‑appeal from Federal Court decision appellant infringed “Hilfiger Flag Logo” trade‑mark, contrary to Trade‑marks Act, s. 20—Appellant seeking order respondents pay for costs of appeal book on pro rata basis to requirements for inclusion of material, or order each party produce own appeal book, bear costs—Under r. 343(5), appeal book to be prepared by appellant unless Court ordering Administrator to prepare it— No cost‑sharing provision in Rules—R. 400(6)(a) empowe-ring Court to award costs in respect of particular issue or step in proceeding—Perhaps r. 400(6)(a) could be used to achieve result sought by appellant at preparation stage or when appeal disposed of—In case of abuse by respondent regarding appeal book content, Court can intervene to preserve right of appeal, prevent abuse of process— Intervention could take form of costs or costs‑sharing order—Appellant alleging respondents intransigent, uncooperative so as to bring financial pressure to bear on appellant—Upon being served with motion, respondents reviewing material, admitted prior all‑inclusive demands not tenable—Appellant challenging many findings of Trial Judge including intention to use “Explore Canada Design” as trade‑mark—Evidence at trial, while not conclusive or not even revealing appellant’s intent at first sight, should be included in appeal books—Number of appeal books filed bewildering, but parties must think it preferable to have documents at hand, even if ultimately not needed—But, in order to minimize unfairness, reduce costs, respondents directed to again review material to ascertain what should be discarded—Direction not ruling on intransigence allegations —Respondents allowed 20 days to report to Court result of review at which time content of appeal books to be finalized, motion disposed of—Order will reserve to panel hearing appeal right to adjudicate costs of appeal books irrespective of decision on merits—Trade‑marks Act, R.S.C., 1985, c. T‑13, s. 20 (as am. by S.C. 1994, c. 47, s. 196)—Federal Courts Rules, SOR/98‑106, rr. 1 (as am. by SOR/2004‑283, s. 2), 54, 343, 400(6)(a).
Quality Goods IMD Inc. v. Tommy Hilfiger Licensing Inc. (A‑45‑05, 2005 FCA 145, Létourneau J.A., order dated 21/4/05, 6 pp.)