Nike Canada Ltd. v. Doe
T-2027-97 / T-945-98 / T-1058-98 / T-1064-98 / T-2295-98 / T-550-99 / T-551-99 / T-646-99 / T-823-99
Reed J.
27/7/99
17 pp.
Motions for orders against unknown defendants under Anton Piller orders-Anton Piller orders given to allow plaintiff to seize goods, related material for use as evidence in proceeding commenced against defendant, evidence that plaintiff fears will be destroyed if not taken into custody of Court-Two types of Anton Piller orders-Second type of Anton Piller order known as "rolling" Anton Piller order where identity of defendant, defendants not known at time order granted-Also, particulars of alleged infringing activity of as yet to be identified defendants not known-All of Anton Piller orders, executions of which came before Court on June 7, 1999 of "rolling type"-None of motion records seeking approval of executions herein contain list of items seized, nor was such list served on defendants-No evidence put before Court as to purpose for which police seized relevant items-Items under custody of neither plaintiffs nor Court-Orders sought should not be granted-No Court of Appeal direction, assessment of appropriateness of remedy crafted-Plaintiff allowed to seize property of others on assertion alone property infringes plaintiff's intellectual property rights-Evaluation of assertion available after fact but many considerations, most important being cost of legal advice, could discourage individuals from contesting plaintiffs' claim after seizure, particularly if only few items seized-Proliferation of counterfeit goods serious problem for intellectual property rights owners such as plaintiffs-Court developed rolling Anton Piller orders because of seriousness of problem-Insufficient checks in existence to ensure abuses do not occur-Not all defendants against whom searches, seizures conducted carrying on business in "evanescent and surreptitious" manner-Anton Piller orders should not be granted except on condition plaintiff paid for supervising solicitor, amicus curiae of Court's choosing, who could both monitor plaintiff's execution of orders as well as be independent of plaintiff's interests-Court not prepared to approve execution of Anton Piller order that appears to piggy-back on search, seizure of goods by police pursuant to criminal proceeding when terms of Anton Piller order expressly state seizure of goods thereunder for civil purposes only-Court not prepared to approve execution as no list, description of seized goods provided to respondents, Court as required by terms of order-Motions for orders against identified persons dismissed.