Date: 19981203
Docket: T-2647-97
BETWEEN:
NATURE'S PATH FOODS INC.
Plaintiff
AND:
COUNTRY FRESH ENTERPRISES INC.
and SUKHDEVPAUL DHANOA
Defendants
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application by the defendants for summary judgment dismissing the plaintiff's action for passing off under paragraph 7(b) of the Trade Marks Act, R.S.C. 1985, c. T-13.
[2] The plaintiff, Nature's Path Foods Inc., manufactures and distributes a wide variety of natural food products and has used its NATURE'S PATH Design logo in Canada since 1993. Mr. Arran Stephens is President of the company.
[3] One of the plaintiff's products is sesame tahini. It is sold in packaging which includes a label design characterized by green and beige colours with gold featured as part of the logo, the generic words SESAME TAHINI De SESAME in relatively large script, and a 250 g notation directly below. The beige colour is set in a rectangular patch to act as a background for the bulk of the writing on the label. The beige rectangle is bordered by green bands. The label includes the oval NATURE'S PATH logo, including the concentric logo with a pastoral scene and sheaves of grain at either side of the inner oval.
[4] The defendant, Sukhdevpaul Dhanoa, was formerly employed by the plaintiff's predecessors companies, Lifestream and Nature's Path, which were also controlled by the plaintiff's president Mr. Stephens. Mr. Dhanoa is now President of the defendant company, Country Fresh Enterprises Inc. ("Country Fresh"), which has been in the natural foods business since October of 1992.
[5] In December of 1995, Country Fresh commenced selling sesame tahini. The product is sold in a 250 gram cylindrical glass jar and features a rectangular label which includes an oval ellipse logo that includes the words COUNTRY FRESH, a concentric central oval showing a pastoral scene and sheaves of grain on each side of the oval. It is beige in colour, bordered by green bands and includes the colour gold. The words SESAME TAHINI is centered on the label.
[6] The plaintiff commenced an action in this Court by way of Statement of Claim filed on December 5, 1997, alleging that, inter alia, the defendants sesame tahini label, including the colours, overall arrangement and logo have been calculated to cause, and are likely to cause, confusion among purchasers and potential purchasers in Canada contrary to paragraph 7(b) of the Trade Marks Act. The defendant now seeks summary judgment dismissing the plaintiff's action on the ground that it discloses no genuine issue for trial, or alternatively, that any genuine issue disclosed in the plaintiff's action should be resolved by way of summary judgment as the facts necessary to decide the issue are apparent on the whole of the evidence.
[7] The purpose of the summary judgment provisions in the Federal Court Rules is to allow the Court to summarily dispense with those cases which it considers ought not to proceed to trial because there is no genuine issue raised in the pleadings. It is a determination to be made on the particular circumstances of each case and on the law and the facts submitted in support of the claim or defence.
[8] The jurisprudence has established that summary judgment will only be granted in the clearest of cases. In Pallmann Maschinenfabrik G.m.b.H. CO. KG (unreported, June 14, 1995, T-1065-93), Teitelbaum, J. made the following comments with respect to the summary judgment rules at p. 19 - 20:
| . . . summary judgment should not be granted on an issue where either on the whole of the evidence the judge cannot find the necessary facts or it would be unjust to do so. I am of the view that summary judgment should only be granted in circumstances where the facts are clear. I am also of the opinion that, in general, summary judgment is not the proper means to obtain judgment where the issues before the Court involve the infringement or the invalidity of a patent. |
[9] In my view, granting summary judgment would not be appropriate in the present case. The evidence raises many valid and complex issues of fact and law such as distinctiveness, confusion and passing off, but it does not, in its present state, allow for a determination of any one of them.
[10] Furthermore, a motions judge will not grant summary judgment unless he or she is entirely satisfied that a trial is unnecessary. Where, as here, credibility is a fundamental issue, a trial is essential so that the evidence and demeanour of the witnesses can be observed and tested.
[11] For these reasons, the defendants' application for summary judgment is dismissed. Costs to the plaintiff in any event of the cause.
JUDGE
OTTAWA, Ontario
December 3, 1998