TRADE MARKS |
Infringement |
Imax Corp. v. Showmax, Inc.
T-592-99
Teitelbaum J.
18/1/00
29 pp.
Motion for interim, interlocutory injunction to restrain defendant Showmax Inc. from using "Showmax" as name of large-format motion picture theatre proposing to open in Montréal--Plaintiff claiming to be inventor, developer of large-format cinema industry--Presently 25 "Imax", "Omnimax" motion picture theatres in Canada, including 3 in Montréal--Defendant intending to open large-format motion picture theatre in Montréal in June 2000 at Forum Entertainment Centre under name, mark "Showmax"--Plaintiff believing defendant's activities likely to cause confusion--Commencing action for trade-mark infringement, passing-off, depreciation of goodwill, statutory trade libel under Trade-marks Act, and for copyright infringement--Showmax Inc. responsible for internet website used to advertise opening of "Showmax" large-format theatre at Forum Entertainment Centre--Technology page on website offering links, including one leading viewer to Old Port of Montréal website, containing information, advertising regarding "Imax" theatre at Old Port of Montréal, displaying "Imax" trade-mark--Plaintiff stating arrangement of framing, linking causing viewer to be likely to infer "Imax" responsible for, connected with "Showmax", for purposes of proposed large-format "Showmax" theatre--Application allowed--(1) Sufficient evidence leading Court to conclude serious issue to be tried--As registered owner of family of marks ("Imax"), plaintiff having exclusive right throughout Canada to use of marks in respect of wares, services--Filed affidavit of Dr. Senders in whose opinion, based on responses to consumer perception survey, use of "Showmax" as name of giant-screen movie theatre in Montréal would be likely to cause visitors, potential visitors to theatre to believe "Showmax" theatres owned, operated by or associated with company owning, operating "Imax" theatres--Defendant filing affidavit of Dr. Liefeld, who disagreed with method of survey, questions asked, method of choosing participants--But Dr. Liefeld neither saying, nor can he say, based on method Dr. Liefeld believes should have been adopted, results different from conclusion of Dr. Senders--That Dr. Liefeld disagreeing with method used by Dr. Senders not sufficient for Court to set aside results of Dr. Sender's survey--Might have been different had Dr. Liefeld conducted own survey in manner thought appropriate, and concluded no possible confusion--Plaintiff making out arguable case on issue of confusion--(2) Plaintiff will suffer irreparable harm--To demonstrate irreparable harm, applicant must lead clear evidence showing how such harm will occur, why irreparable--Evidence of confusion insufficient to infer existence of irreparable harm--Plaintiff must show actual evidence of loss of goodwill or reputation--As defendant not yet commencing operations of large-format theatre using name "Showmax" in Montréal, difficult for plaintiff to show evidence of irreparable harm such as loss of goodwill, sales due to confusion--Plaintiff leading affidavit of Dr. Pearce in whose opinion "Imax" will suffer serious damage to goodwill if defendants using "Showmax" name with large-format movie theatre in Montréal; use of "Showmax" mark will damage brand meaning, equity of "Imax" mark--Defendant not filing any contradictory evidence--(3) Balance of convenience favouring plaintiff--Defendant not yet commencing doing business in Canada--In Montréal, only expense defendant incurring cost of sign on Montréal Forum Building where theatre to open, costs of pamphlet advertising eventual opening of large-format theatre--Costs relatively insignificant--Application allowed--Trade-marks Act, R.S.C., 1985, c. T-13..