Saint Anna Bakery Ltd. v. Cheung's Bakery Products Ltd.
T-572-92
Jerome A.C.J.
9/10/92
6 pp.
Application for default judgment for failure to file statement of defence within time prescribed by R. 402 -- Defendant filed statement of opposition against plaintiff's application to register "Saint Anna Bakery Ltd. & Design" trade mark -- Sending letter to plaintiff demanding it cease and desist using "Saint Anna Bakery Ltd" on basis infringes defendant's registered trade marks -- Plaintiff commencing action for declaration of non-infringement, invalidity of defendant's trade marks -- Defendant commencing own action for trade mark infringement -- Application dismissed -- In light of extensive discussions and communications between parties as to how actions should proceed, order would be entirely inappropriate -- Although plausible argument plaintiff's action improperly commenced by statement of claim given Trade-marks Act, s. 57, Court reluctant to deprive party of right to go on to Court on procedural grounds -- Circumstances requiring Court to direct strategy of competing lawsuits -- Federal Court Act, s. 50 permitting Court to stay proceedings where in interest of justice -- Strong submission in favour of party first commencing action, but greater burden of proof and more comprehensive litigation also important factors -- Although this action commenced first, as defendant (plaintiff in T-1165-92) has onus of proving validity of trade marks, establishing property right in marks, infringement and damages, interests of justice better served by staying action and allowing defendant to proceed with action in T-1165-92 -- Plaintiff herein can obtain relief by way of defence and counterclaim -- Federal Court Act, R.S.C., 1985, c. F-7, s. 50 -- Federal Court Rules, C.R.C., c. 663, R. 402 -- Trade-marks Act, R.S.C., 1985, c. T-13, ss. 7, 57.