Effem Foods Ltd. v. H.J. Heinz Co. of Canada Ltd.
T-1245-97
Rothstein J.
30/6/97
4 pp.
Motion for interlocutory injunction to restrain defendant from running television commercials commencing next day comparing defendant's and plaintiff's dog foods-Plaintiff alleging commercials constituting false or misleading statements discrediting its business, wares contrary to Trade-marks Act, s. 7(1)(a) and involving use of plaintiff's trade-mark in manner likely to depreciate value of goodwill attaching to trade-mark contrary to s. 22(1)-Also alleging defendant engaging in false advertising contrary to Competition Act, s. 52(1)-Motion dismissed-Court not satisfied evidence meeting high standard necessary to prove irreparable harm-No evidence plaintiff's market share declining as result of prior running of commercials-Without clear evidence from which Court could infer future loss would be suffered as result of defendant's commercials running, and without explanation as to why such loss incalculable, irreparable harm not demonstrated-Sophisticated participants in marketplace such as these litigants should be able to provide Court with indication of loss based upon historical experience and mathematical or statistical analysis of circumstances demonstrating loss not reasonably calculable thus giving Court some degree of confidence kind of loss alleged would occur and cannot be calculated-Dunnet J.'s statement in UL Canada Inc. v. Proctor & Gamble Inc. (1996), 65 C.P.R. (3d) 534 (Ont. Ct. Gen. Div.) that "with increased sophistication of accounting and information retrieval techniques, it is probable that any loss could reasonably be established" applicable-Trade-marks Act, R.S.C., 1985, c. T-13, ss. 7(1)(a), 22-Competition Act, R.S.C., 1985, c. C-34, s. 52(1).