Coca-Cola Ltd. v. Pardhan
T-2685-95
Wetston J.
27/11/97
14 pp.
Motion by defendants to strike paragraphs of statement of claim under R. 419-On December 19, 1995, plaintiffs, Coca-Cola Ltd. (CCL) and Coca-Cola Bottling Ltd. (CCBL) commenced action against defendants, alleging infringement of plaintiffs' trade-marks, depreciation of value of goodwill in them, by selling Coca-Cola, made for sale and consumption only in Canada, abroad-Defendants filing statement of defence, counterclaim on March 14, 1996, present motion on June 2, 1997-No delay in defendants having brought motion herein-Period of time at issue only one consideration in determining whether delay-Delay not bar to bringing present motion-Defendants pleading over plaintiffs' statement of claim without specifically objecting to impugned paragraphs-Whether impugned paragraphs disclose no reasonable cause of action-Claim disclosing no reasonable cause of action if, according to law, it could not possibly succeed-Primary issue interpretation of meaning of "use"-Defendants entitled to purchase, resell trademarked products in Canada-Such activity not per se constituting "use" under Trade-marks Act-Plaintiffs arguing export of trade-marked products deemed to be "use in Canada" under Act, s. 4(3)-In enacting s. 4(3), Parliament not intending that provision should apply to every carriage of goods between Canada and another country, whether personal or commercial-Export need not take place in normal course of trade to be deemed "use in Canada" under s. 4(3)-Purposive interpretation of s. 4(3) means it applies to exports which would otherwise constitute use under Act, but for fact trade-marked product being exported-No allegation of actual use of plaintiffs' trademarks by defendants-Defendants not producing counterfeit Coca-Cola products for sale locally or abroad-Merely purchasing large quantities of genuine Coca-Cola products from third-party retailer, then exporting them for sale abroad against obvious wishes of plaintiffs-Defendants not violating Act, s. 22(1), not engaging in activities which constitute "use" under Act, such as unauthorized use of trade-mark or use of confusing mark on product it produces-Evidence of confusion or depreciation of value of goodwill in foreign jurisdictions not evidence of confusion or depreciation of value of goodwill in Canada-Impugned paragraphs disclosing no reasonable cause of action-Plaintiffs failing to plead facts necessary to establish "use" under Act-Plain and obvious action cannot succeed-Entire statement of claim struck without leave to amend-Federal Court Rules, C.R.C., c. 663, R. 419-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 4(3), 22(1).