Date: 20020524
Docket: T-2221-98
Neutral citation: 2002 FCT 598
Ottawa, Ontario, this 24th day of May, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
ROLLS-ROYCE plc, ROLLS-ROYCE & BENTLEY MOTOR CARS LIMITED, and
BENTLEY MOTORS LIMITED
Plaintiffs
- and -
IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED,
ROLLS-ROYCE MOTOR CARS LIMITED and
BENTLEY MOTORS LIMITED
Defendants
[1] This is an application for summary judgment pursuant to Rule 213 of the Federal Court Rules, 1998 SOR/98-106, as amended, in an action alleging trade-mark infringement of a variety of trade-marks owned and registered to the plaintiffs. The plaintiffs seek, inter alia, injunctive relief in respect of the defendants' actual and threatened activities in association with, inter alia, the plaintiffs' ROLLS-ROYCE and BENTLEY trade-marks.
Background Facts
[2] The plaintiffs, Rolls-Royce plc, Rolls-Royce & Bentley Motor Cars Limited, and Bentley Motors Limited are three corporations organized under the laws of England.
[3] The plaintiff, Rolls-Royce plc, owns the following registered trade-marks in Canada:
(a) ROLLS-ROYCE registration No. UCA05921;
(b) ROLLS-ROYCE MONOGRAM registration No. UCA07323; and
(c) ROLLS-ROYCE BADGE registration No. TMA217,812.
[4] The plaintiff, Rolls-Royce & Bentley Motor Cars Limited, owns the following registered trade-marks in Canada:
(a) PHANTOM registration No. UCA11503;
(b) CAR GRILL Design registration No. TMA235,698;
(c) CORNICHE registration No. TMA217,212; and
(d) SILVER CLOUD registration No. TMA233,390.
[5] The certified copies of the Canadian trade-mark registrations for the marks listed in paragraph 4 indicate that they are owned by Rolls-Royce Motor Cars Limited of Crewe, Cheshire, England. The plaintiff, Rolls-Royce & Bentley Motor Cars Limited, is the successor in title to Rolls-Royce Motor Cars Limited and therefore is the owner of the above trade-marks in Canada.
[6] The plaintiff, Bentley Motors Limited, is the owner of the registered Canadian trade-mark for BENTLEY, registration No. TMA163,409.
[7] The defendant, Ian D. Fitzwilliam (hereafter "Mr. Fitzwilliam") is an individual residing in the City of Toronto, Ontario, Canada.
[8] The defendants Rolls-Royce Limited, Rolls-Royce Motor Cars Limited and Bentley Motors Limited (the "corporate defendants") are corporations incorporated in Canada by Mr. Fitzwilliam, without license, authorization or affiliation with the plaintiffs.
[9] The plaintiffs bring this motion for summary judgment to enjoin the three defendant Canadian corporations and Mr. Fitzwilliam from infringing trade-marks owned by the plaintiffs.
Procedural History
[10] On January 11, 1998, the defendant, Mr. Fitzwilliam attempted to file a statement of defence and counterclaim, representing all defendants. There had been no leave of the Court granted pursuant to Rule 120 to allow Mr. Fitzwilliam, a non-lawyer, to represent the corporate defendants.
[11] On January 28, 1999, Rouleau J. struck the statement of defence and counterclaim and provided Mr. Fitzwilliam sixty days to retain counsel and file amended pleadings.
[12] On February 4, 1999, the defendants filed a notice of appeal (file A-72-99) of the order of Rouleau J.
[13] As no proper statement of defence was filed for the corporate defendants, default judgment was granted against the corporate defendants by Lutfy J. on June 10, 1999. The judgment stated that it was to be dissolved in its entirety if the corporate defendants were successful in the final disposition of the appeal of the order of Rouleau J.
[14] The default judgment against the defendants was dissolved (indirectly) by the Federal Court of Appeal in file A-72-99 on June 27, 2000. Létourneau J.A. wrote for the Court that "the corporate defendants should be given 30 days as of today to file through counsel an Amended statement of Defence and Counterclaim."
[15] Mr. Fitzwilliam and the corporate defendants subsequently retained a lawyer who filed a "Fresh as Amended Statement of Defence and Counterclaim of the Defendants, Ian D. Fitzwilliam, Rolls-Royce Limited, Rolls-Royce Motor Cars Limited and Bentley Motors Limited". That document was filed on July 6, 2000, within the 30 days allowed by the Court of Appeal.
[16] On September 15, 2000, Mr. Fitzwilliam filed with the Court a "Notice of Intention to Act in Person" which was signed by Mr. Fitzwilliam on behalf of himself and the defendant corporations. The notice was served upon the plaintiffs by the defendants' (former) counsel. Mr. Fitzwilliam has not been granted leave to represent the corporate defendants.
[17] On September 19, 2000, Hansen J. heard a motion for a temporary injunction. There was no appearance by the defendants. Hansen J. granted the motion and issued a temporary injunction against the defendants.
[18] On September 29, 2000, Mr. Fitzwilliam signed and filed a Notice of Appeal (which became file A-612-00) of the decision of Hansen J. dated September 19, 2000.
[19] A motion for interlocutory injunction was scheduled for October 3, 2000.
[20] The motion scheduled for October 3, 2000 was adjourned to October 17, 2000 to accommodate the cross examination of the plaintiff's witness by Mr. Fitzwilliam. The injunction imposed by Hansen J. dated September 19, 2000 was extended by Blais J. until October 17, 2000.
[21] On October 17, 2000, Dubé J. ordered that the injunction imposed by Hansen J. continue, with additional terms, until October 31, 2000. The hearing for interlocutory injunction was adjourned until October 31, 2000.
[22] On October 31, 2000, a motion was heard by Hansen J., with Mr. Fitzwilliam appearing by teleconference. The motion was granted and the matter was adjourned sine die. The order states that the plaintiffs were not required to provide the corporate defendant's previous counsel with certain confidential documents until the matter of the representations of the corporate defendant was resolved.
[23] On December 11, 2000, Blanchard J. ordered that the defendants be restrained from issuing cease and desist letters to third parties until the final disposition of the motion for interlocutory relief. Blanchard J. further ordered that Mr. Fitzwilliam disclose to whom he has sent such communications, and produce copies of related cease and desist correspondence with third parties.
[24] On December 29, 2000, Mr. Fitzwilliam filed a Notice of Appeal which became appeal file number A-814-00, to appeal the order of Blanchard J. dated December 11, 2000. Appeal file A-814-00 was dismissed for delay by the Court of Appeal on September 4, 2001.
[25] On March 16, 2001, Hansen J. granted a motion removing a party from the counterclaim, removing the amended statement of defence and counterclaim from applying to the corporate defendants, requiring the defendants provide certain particulars, and striking portions of the amended statement of defence and counterclaim of Mr. Fitzwilliam.
[26] On March 26, 2001, Mr. Fitzwilliam filed a Notice of Appeal which became appeal file number A-192-01, to appeal the order of Hansen J. dated March 16, 2001. Appeal file A-192-01 was dismissed for delay by the Court of Appeal on March 11, 2002.
Plaintiff's Submissions
[27] The plaintiffs submit that there is no genuine issue for trial and that summary judgment should be granted.
[28] The plaintiffs submit that their trade-marks are famous in Canada and internationally, and convey associations of luxury, prestige, quality, aristocracy and Britain. The plaintiffs submit that the defendants have admitted in their statement of defence that the ROLLS-ROYCE trade-marks are famous, inherently distinctive and very well-known in Canada.
[29] The plaintiffs submit that Mr. Fitzwilliam's initial proposals to the plaintiffs were politely responded to but there was never any express consent to his use of the plaintiffs' trade-marks and trade names. The plaintiffs submit that when Mr. Fitzwilliam asked for consent in 1998, consent was refused and assurances of cessation of use of trade-marks and trade names, including the ROLLS-ROYCE trade-mark were sought.
[30] The plaintiffs submit that Mr. Fitzwilliam has communicated planned activities to the plaintiffs and other parties which include:
(a) the manufacture or re-manufacture of Rolls-Royce and Bentley automobiles through corporations he has incorporated, including the defendant corporations;
(b) set up a franchise, distribution and dealer network for marketing and selling the products described in (a);
(c) the re-manufacture would include replacing the body, interior and engine and lengthening and strengthening the chassis of cars that originated with the plaintiffs, in essence replacing the majority of the automobile but not the trade-marks;
(d) intends to "build modernized" ROLLS-ROYCE PHANTOM, SILVER CLOUD, and CORNICHE vehicles; and BENTLEY vehicles;
(e) manufacture of (or licensing of third parties to manufacture) ROLLS-ROYCE internal combustion engines under the ROLLS-ROYCE MOTOR MUSEUM name;
(f) operate a franchised network of museums centred on the history and development of ROLLS-ROYCE and BENTLEY automobiles in association with the trade name ROLLS-ROYCE MOTOR MUSEUM. Mr. Fitzwilliam has stated that a "ROLLS-ROYCE rental service, sightseeing service, auction service, restoration service, art gallery, aerospace gallery, reference library, book shop, international buyers guide and gift shop featuring memorabilia, branded goods and die-case models and kits in varying skill levels will also be offered";
(g) publication of an international buyer's guide dedicated exclusively to Rolls-Royce and Bentley motor cars under the name ROLLS-ROYCE WEEKLY and/or ROLLS-ROYCE MONTHLY; and
(h) publication of more than 100 books relating to ROLLS-ROYCE products and history with planned publication on the Internet .
[31] The plaintiffs submit that in furtherance of these plans, Mr. Fitzwilliam has:
(a) sent letters to the plaintiffs, their counsel, and third parties on letterhead bearing the names of Rolls-Royce Motor Museum, Rolls-Royce Limited, Rolls-Royce Collectors' Club, Rolls-Royce Weekly, Rolls-Royce Class Action Committee, Rolls-Royce Unlimited, Rolls-Royce Corporate Governance and Shareholders Rights Committee, World Bar Association and British Motor Museum, where the letters stated his activities, alleged rights and threaten activities in respect of "classic" Rolls-Royce and Bentley automobiles";
(b) incorporated at least the following corporations: Rolls-Royce Limited, Rolls-Royce Motor Cars Limited, Bentley Motors Limited, Rolls-Royce Motors Limited, Rolls-Royce of America Inc. and Bentley Motor Cars Limited;
(c) registered the trading styles Rolls-Royce Monthly and Rolls-Royce Unlimited;
(d) reserved at least the following trading styles in his own name: Rolls-Royce Motor Museum, Rolls-Royce Museum, Rolls-Royce Museum Corporation, Rolls-Royce Museum Foundation, C.S. Rolls & Co. Ltd., Royce Limited, Rolls-Royce Collectors' Club, Rolls-Royce Heritage Foundation, Rolls-Royce Memorial Foundation, Rolls-Royce Memorial and Trust;
(e) registered at least the following domain names: www.rolls-royceweekly.org, www.rolls-roycemuseum.org, www.rolls-roycemotormuseum.org; and
(f) applied to register ROLLS-ROYCE MOTOR MUSEUM as a trade-mark in Canada, that application now having been abandoned.
[32] The plaintiffs submit that Mr. Fitzwilliam recently commenced issuing letters to third parties in Canada and throughout the world on "National Legal Services" letterhead in which he asserted responsibility for world-wide protection and management of the Rolls-Royce name and trade-mark in relation to classic motor cars.
[33] The plaintiffs submit that since the interim injunction was issued on September 19, 2000, Mr. Fitzwilliam has commenced a campaign of correspondence, threats and legal proceedings with the plaintiffs and related and unrelated third parties in which he has, inter alia:
(a) communicated threats to seek a petition for cancellation of the U.S. registrations of the ROLLS-ROYCE trade-mark from the U.S. Trademark Trial and Appeal Board;
(b) communicated plans to make a cash offer for the majority of the shares of the plaintiff Rolls-Royce plc;
(c) communicated with large third party corporations such as Airbus and British Midland soliciting alliances for his proposed offer to purchase shares of the plaintiff Rolls-Royce plc;
(d) commenced an action in the Ontario Superior Court of Justice against Volkswagen AG seeking injunctive relief and damages in the amount of $1.5 billion;
(e) communicated to all of the executive and non-executive directors of the plaintiff Rolls-Royce plc, the proposed establishment of a "Rolls-Royce Corporate Governance and Shareholder's Rights Committee for and on behalf of management and the other shareholders", to address certain "essential ‘governance' issues";
(f) requested that the executive and non-executive directors of the plaintiff Rolls-Royce plc provide, to the "Rolls-Royce Corporate Governance and Shareholder's Rights Committee" information regarding the confidential financial terms of the sale to BMW of the automotive trade-mark registrations including valuations;
(g) communicated threats to commence proceedings to compel the plaintiff Rolls-Royce plc to provide him with a list of its shareholders appearing on the public record or with information relating to the distribution of his purported offer to seek "restitution for lost potential business opportunities in connection therewith";
(h) communicated threats to commence shareholder derivative actions against the plaintiff Rolls-Royce plc;
(i) communicated threats to commence legal action against Rolls-Royce Motor Cars Inc., a U.S. corporation related to the plaintiffs, and BMW, for alleged wrongful acquiescence and encouragement of Mr. Fitzwilliam's use of the ROLLS-ROYCE name;
(j) communicated threats to commence legal action against the plaintiff Rolls-Royce and Bentley Motor Cars Limited and other licensees of the plaintiff Rolls-Royce plc on the basis of alleged misrepresentation and fraudulent coercion;
(k) communicated threats to commence action against licensees of the plaintiff Rolls-Royce plc, including the plaintiffs Rolls-Royce and Bentley Motor Cars Limited, and Bentley Motors Limited, under the United States Racketeer Influenced and Corrupt Organizations Act, Title 18, Part I, Chapter 96, sections 1961-1968, for alleged fraudulent and deceptive business practices;
(l) communicated threats to commence action against all of the executive and non-executive directors of the plaintiff Rolls-Royce plc and other parties, under the United States Racketeer Influenced and Corrupt Organizations Act, supra for alleged breach of fiduciary duty, breach of confidence and trust, theft, misrepresentation and self-dealing;
(m) communicated a request to the Registrar of Trade-marks for issuance of a notice under Section 45 of the Trade-marks Act against the PHANTOM trade-mark registration (UCA 11503) of the plaintiff Rolls-Royce and Bentley Motor Cars Limited;
(n) communicated threats to request the issuance of further such notices against numerous other registrations of the plaintiffs;
(o) presented the plaintiff Rolls-Royce plc with an invoice in the amount of $3.5 billion U.S. in respect of domain name registrations;
(p) requested that this Court order further cross-examination of a deponent on his affidavit on the basis of alleged misrepresentation, fraudulent coercion, fraudulent and deceitful business practices on the part of the plaintiffs and other Rolls-Royce licensees, and on the basis of alleged improprieties on the part of the plaintiffs including evidence tampering;
(q) communicated threats to commence winding-up proceedings against "Rolls-Royce" on the basis of an alleged inability to satisfy its liabilities;
(r) communicated a requisition that he be granted the right to use any trade-mark relating to the RR emblem and any trade-mark containing "Rolls Royce" or "Rolls" or "Royce" free of charge on the basis of a purported "explicit direction" from the Receiver of Rolls-Royce Limited;
(s) communicated threats to issue a press statement in relation to his anticipated filing of an application for an interim ruling with the European Commission, in regard to said purported "explicit direction" from the Receiver of Rolls-Royce Limited; and
(t) communicated threats to "file suit against hundreds of third parties in the United States and elsewhere, that have harmed, or are likely to seriously harm, my business interests and the business interests of my related institutions, by diluting the [ROLLS-ROYCE] brand and depreciating the value of the goodwill attaching thereto".
Defendants' Submissions
[34] The defendants submit that they validly removed their previous solicitor of record. The defendants submit that the corporate defendants have consented to allow Mr. Fitzwilliam (a non-solicitor) to replace their solicitor and represent all defendants.
[35] The defendants take no issue with the plaintiffs' assertion that Mr. Fitzwilliam was the controlling mind of the defendant corporations. Moreover, in the oral submissions of Mr. Fitzwilliam, the individual defendant repeatedly referred to the actions of the defendant corporations in the first person (i.e. "I received..." and "I sent under the letterhead of...").
[36] The defendants submit that they were not all properly served with the notice of motion and the motion record. The defendants submit that the plaintiffs did not follow the Rules by failing to provide separate copies to each defendant corporation. The defendants further submit that the applicants should not have served copies of the motion material on the defendant corporations' former solicitor as the defendants had already removed that solicitor and replaced her with Mr. Fitzwilliam. Accordingly, the defendants submitted that the defendant corporations were not properly served.
[37] The defendants submit that the plaintiffs previously argued that there was a genuine issue for trial in this case. The defendants submit that the plaintiffs should now be estopped from asserting that there is no genuine issue for trial.
[38] The defendants submit that there are at least 1,000 trading style names, including 25 pornographic Internet web-sites, using the mark "Rolls-Royce" or some variation therefrom. The defendants submit that only 4 of the 1,000 names are authorized by the plaintiffs. The defendants submit that since Rolls-Royce plc et al have not enforced their trade-mark rights against these 1,000 alleged third party trade-mark-infringing names, then the plaintiffs cannot enforce their trade-mark rights against the defendants. The defendants suggest that the plaintiffs cannot enforce their trade-mark rights on equitable grounds as they should not be allowed to enforce against the defendants to the exclusion of the other infringers. The defendants also submit that the plaintiffs have acquiesced in their enforcement against the alleged 1,000 third party infringers and are now unable to enforce, and have therefore lost, their trade-mark rights in the name ROLLS-ROYCE.
[39] The defendants submit that they are share holders of Rolls-Royce plc, which makes them fractional owners of the company. As fractional owners of Rolls-Royce plc, the defendants submit that they should have some fractional rights to use the plaintiffs' trade-marks. In particular, the defendants submit that their fractional interest should be roughly equivalent to being able to use about 3 of the plaintiffs' trade-marks.
[40] The defendants submit that they have a right to use the plaintiffs' trade-marks as a result of alleged encouragement Mr. Fitzwilliam received from the plaintiffs or licensees of the plaintiffs for his unsolicited proposals in respect of the classic ROLLS-ROYCE and BENTLEY automobile market.
[41] Issues
1. Can the defendant corporations be represented by the individual defendant?
2. Were the defendants properly served with the notice of motion and the motion record?
3. Are the plaintiffs' trade-marks valid?
4. Is this an appropriate case to grant summary judgment?
5. Have the defendants infringed the plaintiff's trade-marks?
Law Applicable to Motions for Summary Judgment
[42] Rules 120 and 213 to 218 of the Federal Court Rules, 1998 read as follows:
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120. A corporation, partnership or unincorporated association shall be represented by a solicitor in all proceedings, unless the Court in special circumstances grants leave to it to be represented by an officer, partner or member, as the case may be.
213. (1) A plaintiff may, after the defendant has filed a defence, or earlier with leave of the Court, and at any time before the time and place for trial are fixed, bring a motion for summary judgment on all or part of the claim set out in the statement of claim.
(2) A defendant may, after serving and filing a defence and at any time before the time and place for trial are fixed, bring a motion for summary judgment dismissing all or part of the claim set out in the statement of claim.
214. (1) A party may bring a motion for summary judgment in an action by serving and filing a notice of motion and motion record at least 20 days before the day set out in the notice for the hearing of the motion.
(2) A party served with a motion for summary judgment shall serve and file a respondent's motion record not later than 10 days before the day set out in the notice of motion for the hearing of the motion.
215. A response to a motion for summary judgment shall not rest merely on allegations or denials of the pleadings of the moving party, but must set out specific facts showing that there is a genuine issue for trial. |
120. Une personne morale, une société de personnes ou une association sans personnalité morale se fait représenter par un avocat dans toute instance, à moins que la Cour, à cause de circonstances particulières, ne l'autorise à se faire représenter par un de ses dirigeants, associés ou membres, selon le cas.
213. (1) Le demandeur peut, après le dépôt de la défense du défendeur -- ou avant si la Cour l'autorise -- et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire sur tout ou partie de la réclamation contenue dans la déclaration.
(2) Le défendeur peut, après avoir signifié et déposé sa défense et avant que l'heure, la date et le lieu de l'instruction soient fixés, présenter une requête pour obtenir un jugement sommaire rejetant tout ou partie de la réclamation contenue dans la déclaration.
214. (1) Toute partie peut présenter une requête pour obtenir un jugement sommaire dans une action en signifiant et en déposant un avis de requête et un dossier de requête au moins 20 jours avant la date de l'audition de la requête indiquée dans l'avis.
(2) La partie qui reçoit signification d'une requête en jugement sommaire signifie et dépose un dossier de réponse au moins 10 jours avant la date de l'audition de la requête indiquée dans l'avis de requête.
215. La réponse à une requête en jugement sommaire ne peut être fondée uniquement sur les allégations ou les dénégations contenues dans les actes de procédure déposés par le requérant. Elle doit plutôt énoncer les faits précis démontrant l'existence d'une véritable question litigieuse. |
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216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.
(2) Where on a motion for summary judgment the Court is satisfied that the only genuine issue is
(a) the amount to which the moving party is entitled, the Court may order a trial of that issue or grant summary judgment with a reference under rule 153 to determine the amount; or
(b) a question of law, the Court may determine the question and grant summary judgment accordingly.
(3) Where on a motion for summary judgment the Court decides that there is a genuine issue with respect to a claim or defence, the Court may nevertheless grant summary judgment in favour of any party, either on an issue or generally, if the Court is able on the whole of the evidence to find the facts necessary to decide the questions of fact and law.
(4) Where a motion for summary judgment is dismissed in whole or in part, the Court may order the action, or the issues in the action not disposed of by summary judgment, to proceed to trial in the usual way or order that the action be conducted as a specially managed proceeding.
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216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.
(2) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue que la seule véritable question litigieuse est:
a) le montant auquel le requérant a droit, elle peut ordonner l'instruction de la question ou rendre un jugement sommaire assorti d'un renvoi pour détermination du montant conformément à la règle 153;
b) un point de droit, elle peut statuer sur celui-ci et rendre un jugement sommaire en conséquence.
(3) Lorsque, par suite d'une requête en jugement sommaire, la Cour conclut qu'il existe une véritable question litigieuse à l'égard d'une déclaration ou d'une défense, elle peut néanmoins rendre un jugement sommaire en faveur d'une partie, soit sur une question particulière, soit de façon générale, si elle parvient à partir de l'ensemble de la preuve à dégager les faits nécessaires pour trancher les questions de fait et de droit.
(4) Lorsque la requête en jugement sommaire est rejetée en tout ou en partie, la Cour peut ordonner que l'action ou les questions litigieuses qui ne sont pas tranchées par le jugement sommaire soient instruites de la manière habituelle ou elle peut ordonner la tenue d'une instance à gestion spéciale. |
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217. A plaintiff who obtains summary judgment under these Rules may proceed against the same defendant for any other relief and against any other defendant for the same or any other relief.
218. Where summary judgment is refused or is granted only in part, the Court may make an order specifying which material facts are not in dispute and defining the issues to be tried, including an order
(a) for payment into court of all or part of the claim;
(b) for security for costs; or
(c) limiting the nature and scope of the examination for discovery to matters not covered by the affidavits filed on the motion for summary judgment or by any cross-examination on them and providing for their use at trial in the same manner as an examination for discovery. |
217. Le demandeur qui obtient un jugement sommaire aux termes des présentes règles peut poursuivre le même défendeur pour une autre réparation ou poursuivre tout autre défendeur pour la même ou une autre réparation.
218. Lorsqu'un jugement sommaire est refusé ou n'est accordé qu'en partie, la Cour peut, par ordonnance, préciser les faits substantiels qui ne sont pas en litige et déterminer les questions qui doivent être instruites, ainsi que:
a) ordonner la consignation à la Cour d'une somme d'argent représentant la totalité ou une partie de la réclamation;
b) ordonner la remise d'un cautionnement pour dépens;
c) limiter la nature et l'étendue de l'interrogatoire préalable aux questions non visées par les affidavits déposés à l'appui de la requête en jugement sommaire, ou limiter la nature et l'étendue de tout contre-interrogatoire s'y rapportant, et permettre l'utilisation de ces affidavits lors de l'interrogatoire à l'instruction de la même manière qu'à l'interrogatoire préalable. |
[43] Relevant portions of the Trade-marks Act, R.S.C. 1985, c. T-13, as amended, are as follows:
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7. No person shall
(a) make a false or misleading statement tending to discredit the business, wares or services of a competitor;
(b) direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another; . . .
19. Subject to sections 21, 32 and 67, the registration of a trade-mark in respect of any wares or services, unless shown to be invalid, gives to the owner of the trade-mark the exclusive right to the use throughout Canada of the trade-mark in respect of those wares or services.
20. (1) The right of the owner of a registered trade-mark to its exclusive use shall be deemed to be infringed by a person not entitled to its use under this Act who sells, distributes or advertises wares or services in association with a confusing trade-mark or trade-name, but no registration of a trade-mark prevents a person from making
(a) any bona fide use of his personal name as a trade-name, or
(b) any bona fide use, other than as a trade-mark,
(i) of the geographical name of his place of business, or
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7. Nul ne peut_:
a) faire une déclaration fausse ou trompeuse tendant à discréditer l'entreprise, les marchandises ou les services d'un concurrent;
b) appeler l'attention du public sur ses marchandises, ses services ou son entreprise de manière à causer ou à vraisemblablement causer de la confusion au Canada, lorsqu'il a commencé à y appeler ainsi l'attention, entre ses marchandises, ses services ou son entreprise et ceux d'un autre; . . .
19. Sous réserve des articles 21, 32 et 67, l'enregistrement d'une marque de commerce à l'égard de marchandises ou services, sauf si son invalidité est démontrée, donne au propriétaire le droit exclusif à l'emploi de celle-ci, dans tout le Canada, en ce qui concerne ces marchandises ou services.
20. (1) Le droit du propriétaire d'une marque de commerce déposée à l'emploi exclusif de cette dernière est réputé être violé par une personne non admise à l'employer selon la présente loi et qui vend, distribue ou annonce des marchandises ou services en liaison avec une marque de commerce ou un nom commercial créant de la confusion. Toutefois, aucun enregistrement d'une marque de commerce ne peut empêcher une personne_:
a) d'utiliser de bonne foi son nom personnel comme nom commercial;
b) d'employer de bonne foi, autrement qu'à titre de marque de commerce_:
(i) soit le nom géographique de son siège d'affaires,
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(ii) of any accurate description of the character or quality of his wares or services,
in such a manner as is not likely to have the effect of depreciating the value of the goodwill attaching to the trade-mark.
(2) No registration of a trade-mark prevents a person from making any use of any of the indications mentioned in subsection 11.18(3) in association with a wine or any of the indications mentioned in subsection 11.18(4) in association with a spirit.
22. (1) No person shall use a trade-mark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto.
(2) In any action in respect of a use of a trade-mark contrary to subsection (1), the court may decline to order the recovery of damages or profits and may permit the defendant to continue to sell wares marked with the trade-mark that were in his possession or under his control at the time notice was given to him that the owner of the registered trade-mark complained of the use of the trade-mark. |
(ii) soit toute description exacte du genre ou de la qualité de ses marchandises ou services,
d'une manière non susceptible d'entraîner la diminution de la valeur de l'achalandage attaché à la marque de commerce.
(2) L'enregistrement d'une marque de commerce n'a pas pour effet d'empêcher une personne d'utiliser les indications mentionnées au paragraphe 11.18(3) en liaison avec un vin ou les indications mentionnées au paragraphe 11.18(4) en liaison avec un spiritueux.
22. (1) Nul ne peut employer une marque de commerce déposée par une autre personne d'une manière susceptible d'entraîner la diminution de la valeur de l'achalandage attaché à cette marque de commerce.
(2) Dans toute action concernant un emploi contraire au paragraphe (1), le tribunal peut refuser d'ordonner le recouvrement de dommages-intérêts ou de profits, et permettre au défendeur de continuer à vendre toutes marchandises revêtues de cette marque de commerce qui étaient en sa possession ou sous son contrôle lorsque avis lui a été donné que le propriétaire de la marque de commerce déposée se plaignait de cet emploi. |
Analysis
[44] Issue 1
Can the defendant corporations be represented by the individual defendant?
In this case, the actions with which this case relates are exclusively performed by the individual defendant, Mr. Fitzwilliam. Mr. Fitzwilliam has used letterhead of the defendant corporations during his alleged trade-mark infringing actions, and has used a variety of other trading styles and titles that may or may not be associated with any other organization or corporation. The plaintiffs contend that Mr. Fitzwilliam is the controlling mind of the defendant corporations. Mr. Fitzwilliam does not dispute that allegation.
[45] In the history of this Court file, it has been made clear to Mr. Fitzwilliam that pursuant to Rule 120, the corporate defendants must be represented by counsel unless leave of the court is granted to allow an individual, who is not a lawyer, to represent the corporations. Mr. Fitzwilliam has not sought and has not received leave.
[46] Notwithstanding the failure to get leave, Mr. Fitzwilliam clearly expressed his desire and intention to represent the corporate defendants before the Court. At the hearing, the plaintiffs consented to allow me to consider the representations of Mr. Fitzwilliam to apply to all the defendants. On agreement of the parties, and in the interests of the administration of justice, I stated at the hearing that I was prepared to proceed with the motion for summary judgment as though Mr. Fitzwilliam had been granted leave to represent the defendant corporations. To be clear, this indulgence does not grant leave to Mr. Fitzwilliam to represent the defendant corporations in any subsequent matter before the Courts, including any appeals of this decision.
[47] Issue 2
Were the defendants properly served with the notice of motion and the motion record?
At the hearing, Mr. Fitzwilliam argued that the rules were not properly complied with to serve separate copies of the motion material on the corporate defendants.
[48] It is difficult to believe that Mr. Fitzwilliam was not personally served with the motion record for this motion. He appeared before me by teleconference the previous week opposing a motion to allow a supplemental motion record. At no time during that motion or related correspondence did Mr. Fitzwilliam mention that he had not received the motion record.
[49] I have been presented with a solicitor's certificate of service which states that the motion record was served on Mr. Fitzwilliam and on the solicitor for the defendant corporations. During arguments before me, Mr. Fitzwilliam took issue with the service on the defendant corporations asserting that only one copy for all three of the corporations was filed. Further, Mr. Fitzwilliam took issue with the fact that the plaintiffs served the defendant corporations' solicitor after Mr. Fitzwilliam signed a document attempting to remove the solicitor as the solicitor of record. Mr. Fitzwilliam's arguments made it clear to me that he had received at least one copy of the motion material.
[50] The defendants took no issue with the plaintiffs' assertion that Mr. Fitzwilliam was the controlling mind of the defendant corporations. Aside from the period where the defendant corporations were represented by a solicitor in these proceedings, there were no examples cited to the Court where any of the defendant corporations took any actions that were directed or signed by any individual other than Mr. Fitzwilliam. Moreover, in the oral submissions of Mr. Fitzwilliam, the individual defendant repeatedly referred to the actions of the defendant corporations in the first person (i.e. "I received..." and "I sent under the letterhead of...").
[51] Rule 147 allows the Court to consider the documents to be validly served if it is satisfied that the document came to the notice of the person to be served. Mr. Fitzwilliam admitted that he received a copy of the material, and that he is the controlling mind of the corporations, and that he seeks to represent the defendant corporations in this proceeding.
[52] I am satisfied that Mr. Fitzwilliam is the controlling mind of the defendant corporations and that service on Mr. Fitzwilliam under these circumstances is sufficient to constitute service on the defendant corporations.
[53] Issue 3
Are the plaintiffs' trade-marks valid?
The plaintiffs have entered certified copies of their trade-mark registrations for the following trade-marks:
ROLLS-ROYCE registration No. UCA05921;
ROLLS-ROYCE MONOGRAM registration No. UCA07323;
ROLLS-ROYCE BADGE registration No. TMA217,812;
PHANTOM registration No. UCA11503;
CAR GRILL Design registration No. TMA235,698;
CORNICHE registration No. TMA217,212;
SILVER CLOUD registration No. TMA233,390; and
BENTLEY registration No. TMA163,409.
I am satisfied that the plaintiffs are the lawful owners of the above trade-marks in Canada in the manner described in paragraphs 3, 4 and 6 of these reasons.
[54] Mr. Fitzwilliam has argued that the plaintiff Rolls-Royce plc has lost its exclusive rights to the ROLLS-ROYCE trade-mark on the grounds that it has failed to enforce its trade-mark rights against a variety of parties who use the words ROLLS-ROYCE in their trade names and/or domain names. At the same time, Mr. Fitzwilliam has also admitted that ROLLS-ROYCE is a world famous trade-mark that denotes quality. Mr. Fitzwilliam has taken it upon himself to contact third parties who are allegedly infringing the ROLLS-ROYCE trade-mark, allegedly on behalf of the owners of the trade-mark, to tell them to stop infringing the world famous mark.
[55] The arguments of Mr. Fitzwilliam are internally inconsistent. Either the trade-mark for ROLLS-ROYCE is a world famous mark to which the plaintiff Rolls-Royce plc owns exclusive rights to in Canada, or the trade-mark is so commonly used in the marketplace that it has lost its distinctiveness and Rolls-Royce plc should be prevented from asserting any further rights in the mark. Mr. Fitzwilliam has not persuaded me that there is any valid reason why Rolls-Royce plc should be prevented from enforcing the rights to its trade-mark in Canada. I accept the view that ROLLS-ROYCE is a famous trade-mark with exclusive rights in Canada owned by Rolls-Royce plc.
[56] The defendants have not succeeded in demonstrating that any of the plaintiffs' trade-marks are invalid pursuant to section 19 of the Trade-marks Act, supra. I can see no reason why the trade-marks of the plaintiffs listed in paragraph 53 are not valid in Canada.
[57] Issue 4
Is this an appropriate case to grant summary judgment?
The appropriate considerations in a motion for summary judgment were set out by Tremblay-Lamer J. in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2. F.C. 853 (T.D.) as follows:
I have considered all of the case law pertaining to summary judgment and I summarize the general principles accordingly:
1. the purpose of the provisions is to allow the Court to summarily dispense with cases which ought not proceed to trial because there is no genuine issue to be tried . . .
2. there is no determinative test . . . It is not whether a party cannot possibly succeed at trial, it is whether the case is so doubtful that it does not deserve consideration by the trier of fact at a future trial;
3. each case should be interpreted in reference to its own contextual framework. . . .
4. provincial practice rules (especially Rule 20 of the Ontario Rules of Civil Procedure, [R.R.O. 1990, Reg. 194]) can aid in interpretation . . .
5. this Court may determine questions of fact and law on the motion for summary judgment if this can be done on the material before the Court . . .
6. on the whole of the evidence, summary judgment cannot be granted if the necessary facts cannot be found or if it would be unjust to do so . . .
7. in the case of a serious issue with respect to credibility, the case should go to trial because the parties should be cross-examined before the trial judge . . . The mere existence of apparent conflict in the evidence does not preclude summary judgment; the court should take a "hard look" at the merits and decide if there are issues of credibility to be resolved . . .
[58] The Court of Appeal affirmed these summary judgment principles by referring to them as "the correct test" in ITV Technologies Inc. v. WIC Television Ltd. (2001) 199 F.T.R. 319.
[59] Following the reasoning of Granville Shipping, supra, I am satisfied that there is no genuine issue for trial. Mr. Fitzwilliam made an inconsistent argument on this point which suggested that he did not understand the legal concept. "No genuine issue for trial" does not mean that the plaintiffs did not have a reason to bring the action in the first place. In this proceeding, the necessary facts are clear to show that the defendants have used a variety of the plaintiffs' trade-marks and wish to continue to use them based on an apparent misunderstanding of trade-mark law. The defendants have not established that there is a serious issue to be tried in respect of the validity of the trade-mark registrations or in respect of providing the defendants with rights to use the trade-marks.
[60] Continuing in the Granville Shipping, supra analysis, it is my view that the defendants' case is so doubtful that it does not deserve consideration by the trier of fact at a future trial.
[61] I am satisfied that the relevant facts to determine this proceeding are before this Court in this motion for summary judgment. I do not believe that necessary facts are missing or that it would be unjust to allow the summary judgment to be granted.
[62] There is no serious issue with respect to credibility such that this proceeding should
proceed to trial.
[63] For the above reasons, this is an appropriate situation to be resolved on a motion for summary judgment.
[64] Issue 5
Have the defendants infringed the plaintiffs' trade-marks?
The parties have entered many volumes of evidence in this proceeding. A considerable amount of the plaintiffs' evidence is in the form of exhibits to affidavits where the exhibits were letters, correspondence and material originating from the defendants. The factual basis for this action does not appear to be in dispute.
[65] For example, the letterhead of the defendant Rolls-Royce Limited, on which Mr. Fitzwilliam has sent many letters, calls itself "The Original Rolls-Royce Company", makes the claim that it is "The Only Original Rolls-Royce Motor Engine Manufacturer in the World", and states "Established 1906, Re-Established 1994". The claims and the corporate name infringe the plaintiff's trade-mark for ROLLS-ROYCE. Further, Mr. Fitzwilliam and the defendant corporation conduct themselves in a manner likely to confuse the public into believing the defendant corporation is the "Original Roll-Royce Company", namely the plaintiff Rolls-Royce plc. This state of affairs cannot be allowed to stand.
[66] The two remaining corporate defendants are similarly named in manners infringing the plaintiffs' marks and are likely to confuse the public as to whether they are the plaintiff corporations or are closely associated with the plaintiffs.
[67] In a second example, Mr. Fitzwilliam recently issued letters to third parties in Canada and throughout the world on letterhead of "National Legal Services, Worldwide Intellectual Property Division" in which he used the title "Administrator" and asserted that:
This office acts for the Rolls-Royce Motor Museum worldwide. Our client's attention has been drawn to your use of the "Rolls-Royce" name and trademark in the identification of your non-Rolls-Royce vehicle.
On August 20, 2000, the Rolls-Royce Motor Museum has assumed full and complete responsibility for the world-wide protection and management of the Rolls-Royce name and trade-mark in relation to classic motor cars. Your unauthorized use of the "Rolls-Royce" name and trademark constitutes an infringement of our client's rights.
[68] Mr. Fitzwilliam has no legal foundation for the above assertion regarding the ROLLS-ROYCE trade-mark. As already stated in this judgment, the Canadian trade-mark for ROLLS-ROYCE is owned by the plaintiff Rolls-Royce plc.
[69] I am satisfied that the plaintiffs have established that the defendants have infringed the plaintiffs' trade-marks in the manner alleged by the plaintiffs in their submissions.
[70] The defendants' main argument in defence is not disputing the plaintiffs' evidence of the defendants' use and threatened use of the plaintiffs' trade-marks but rather that the defendants should enjoy some apparent right to use these trade-marks. Unfortunately for the defendants, owning shares in a corporation does not confer the shareholder with any fractional rights to use any trade-marks owned by the corporation. I am not persuaded that the defendants have any rights to use the trade-marks owned by the plaintiffs.
[71] I am satisfied that this is an appropriate case for summary judgment and that the evidence establishes that the defendants have infringed and threaten to further infringe the plaintiffs' trade-marks as alleged. By so doing, the defendants have interfered with the plaintiffs' exclusive rights conferred by registration of their trade-marks pursuant to section 19 and have infringed the plaintiffs' trade-marks contrary to section 20 of the Trade-marks Act, supra (see AC Spark Plug Co. v.Canadian Spark Plug Service, [1935] Ex C.R. 57 at 68; and Mr. Submarine Ltd. v. Amandista Investments Ltd. (1987), 19 C.P.R. (3d) 3 at 8 (F.C.A.)). I am further satisfied that the defendants have made false or misleading statements contrary to subsection 7(a) and directed public attention to their businesses in such a way as to likely cause confusion in Canada with the businesses of the plaintiffs contrary to subsection 7(b) of the Trade-marks Act, supra (see McDonald v. Vapour Canada Ltd.(1976), 22 C.P.R. (2d) 1 at 14, 18 (S.C.C.) and Ciba-Geigy Canad Ltd. v. Apotex Inc. (1992), 44 C.P.R. (3d) 289 at 297 (S.C.C.)).
[72] The plaintiffs shall have their costs of this action plus GST.
ORDER
[73] IT IS ORDERED that:
1. The plaintiffs' motion for summary judgment is granted.
2. It is declared that the trade-marks that are the subject of registration Nos. UCA05921, UCA07323 and TMA217,812 are valid and are owned by the Plaintiff Rolls-Royce plc.
3. It is declared that the trade-marks that are the subject of registration numbers UCA11503, TMA235,698, TMA217,212 and TMA233,390 are valid and are owned by the plaintiff Rolls-Royce Motor Cars Limited.
4. It is declared that the trade-mark that is the subject of registration number TMA163,409 is valid and is owned by the plaintiff Bentley Motors Limited.
5. It is declared that the defendants, collectively and individually, have directed public attention to their wares, services and businesses and are threatening to do so in such a way as to cause or to be likely to cause confusion in Canada between their wares, services and businesses and the wares, services and businesses of the plaintiffs, contrary to section 7(b) of the Trade-marks Act, supra.
6. It is declared that the defendants, collectively and individually, have infringed, are deemed to have infringed and have threatened to infringe the exclusive rights of the plaintiffs in the trade-marks that are the subject of registration numbers UCA05921, UCA07323, TMA217,812, UCA11503, TMA235,698, TMA217,212, TMA233,390 and TMA163,409 contrary to sections 19 and 20 of the Trade-marks Act, supra.
7. It is declared that the defendants, collectively and individually, have used and are threatening to use the trade-marks that are the subject of registration numbers UCA-5921, UCA-7323, TMA217,812, UCA11503, TMA235,698, TMA217,212, TMA233,390 and TMA163,409 in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto, contrary to section 22 of the Trade-marks Act, supra.
8. The defendants, their shareholders, directors, officers, agents, servants, employees, affiliates, subsidiaries and each of them are hereby restrained from directly or indirectly:
(a) manufacturing, or causing to be manufactured, advertising, offering for sale, selling and distributing motor vehicles not originating with the plaintiffs, marked or labelled with the trade-mark and/or trade-names ROLLS-ROYCE, ROLLS-ROYCE & DESIGN, RR DESIGN, PHANTOM, CAR GRILL DESIGN, CORNICHE, SILVER CLOUD or BENTLEY or any other trade-mark and/or trade-names confusing with the trade-marks and/or trade-names ROLLS-ROYCE, ROLLS-ROYCE & DESIGN, RR DESIGN, PHANTOM, CAR GRILL DESIGN, CORNICHE, SILVER CLOUD or BENTLEY;
(b) publishing or causing to be published, advertising, offering for sale, selling and distributing publications marked or labelled with the trade-mark and trade-name ROLLS-ROYCE or BENTLEY, or any other trade-mark or trade-name confusing with the trade-mark and trade-name ROLLS-ROYCE or BENTLEY;
(c) operating or advertising the operation of a motor museum, rental service, site seeing service, auction service, restoration service, art gallery, aerospace gallery, reference library, bookshop, international buyer's guide or gift shop in association with the trade-marks and trade-names ROLLS-ROYCE or BENTLEY or any other trade-mark or trade-name confusing with the trade-mark and trade-name ROLLS-ROYCE or BENTLEY;
(d) trading or carrying on business under a name that contains the words Rolls-Royce, Bentley or any other name that would be likely to suggest a business connection with the plaintiffs, including Rolls-Royce Limited, Rolls-Royce Motor Cars Limited, Bentley Motors Limited, Rolls-Royce Motors Limited, Rolls-Royce of America Inc., Rolls-Royce Motor Museum, Rolls-Royce Heritage Foundation, Rolls-Royce Memorial Trust, Rolls-Royce Collectors Club, Rolls-Royce Historical Foundation, Rolls-Royce Commemorative Trust and Bentley Motor Cars Limited;
(e) incorporating a corporation or setting up a charitable trust under a name that contains the words ROLLS-ROYCE, BENTLEY or any other name that would be likely to suggest a business connection with the plaintiffs, including Rolls-Royce Limited, Rolls-Royce Motor Cars Limited, Bentley Motors Limited, Rolls-Royce Motors Limited, Rolls-Royce of America Inc., Rolls-Royce Motor Museum, Rolls-Royce Heritage Foundation, Rolls-Royce Memorial Trust, Rolls-Royce Collectors Club, Rolls-Royce Historical Foundation, Rolls-Royce Commemorative Trust and Bentley Motor Cars Limited;
(f) otherwise using the trade-marks and/or trade-names ROLLS-ROYCE, ROLLS-ROYCE & DESIGN, RR DESIGN, PHANTOM, CAR GRILL DESIGN, CORNICHE, SILVER CLOUD or BENTLEY or any other trade-mark and/or trade-names confusing with the trade-marks and/or trade-names ROLLS-ROYCE, ROLLS-ROYCE & DESIGN, RR DESIGN, PHANTOM, CAR GRILL DESIGN, CORNICHE, SILVER CLOUD or BENTLEY without the approval of the plaintiffs;
(g) directing public attention to the wares, services and businesses and threatening to do so in such a way as to cause or to be likely to cause confusion in Canada between the wares, services and businesses and the wares, services and businesses of the plaintiffs, contrary to section 7(b) of the Trade-marks Act, supra;
(h) infringing and threatening to infringe the exclusive rights of the plaintiffs in the trade-marks that are subject of registration numbers UCA05921, UCA07323, TMA217,812, UCA11503, TMA235,698, TMA217,212, TMA233,390 and TMA163,409 contrary to sections 19 and 20 of the Trade-marks Act, supra;
(i) using and threatening to use the trade-marks that are the subject of registration numbers UCA05921, UCA07323, TMA217,812, UCA11503, TMA235,698, TMA217,212, TMA233,390 and TMA163,409 in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto, contrary to section 22 of the Trade-marks Act, supra;
(j) using the words ROLLS-ROYCE, BENTLEY or any other name that would be likely to suggest a business connection with the plaintiffs as or in part of a domain name or other such computer address including rolls-royceweekly.com; and
(k) issuing any cease and desist letters or otherwise communicating in writing or orally with any third parties, with respect to the defendants' assertion of intellectual property rights in the ROLLS-ROYCE name and trade-mark, including by not limited to commencing any legal proceeding or otherwise asserting any claim against any persons in respect of the defendants' assertion of such intellectual property rights.
9. The defendant Ian D. Fitzwilliam is ordered to change the corporate names of Rolls-Royce Limited, Rolls-Royce Motor Cars Limited, Bentley Motors Limited, Rolls-Royce Motors Limited and Rolls-Royce of America Inc., to names that do not include the words Rolls-Royce, Bentley or any other name that would be likely to suggest a business connection with the plaintiffs.
10. The defendant Ian D. Fitzwilliam is ordered to relinquish to the plaintiffs, his registration for the domain name rolls-royceweekly.com and any rights to any other domain name which use the words Rolls-Royce, Bentley or any other name that would be likely to suggest a business connection with the plaintiffs, including without limiting the generality of the foregoing, any such domain name which may have been relinquished by third parties to any of the defendants.
11. The defendants are ordered to deliver up or destroy upon oath any motor vehicles, plans, publications, letterhead, merchandising, promotional and advertising materials or other materials that offend in any way against any of the preceding orders.
12. The plaintiffs herein are entitled to damages, or at their election subsequent to discovery, to an accounting of profits made by the defendants as a result of their unlawful activities, including pre-judgment and post-judgment interest, in an amount to be determined by a referee.
13. The plaintiffs shall have their costs of this action plus GST.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2221-98
STYLE OF CAUSE: ROLLS-ROYCE plc, ROLLS-ROYCE & BENTLEY
MOTOR CARS LIMITED, and
BENTLEY MOTORS LIMITED
- and -
IAN D. FITZWILLIAM, ROLLS-ROYCE LIMITED,
ROLLS-ROYCE MOTOR CARS LIMITED and
BENTLEY MOTORS LIMITED
PLACE OF HEARING: Ottawa, Ontario, Toronto, Ontario
DATE OF HEARING: November 26, 2001 and November 30, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES: Mr. Brian Isaac
Ms. Daphne Maravei
FOR PLAINTIFFS
Mr. Ian Fitzwilliam
FOR DEFENDANTS
SOLICITORS OF RECORD:
Smart and Biggar
Suite 1500, Box 111
438 University Avenue
Toronto, Ontario
M5G 2K8
FOR PLAINTIFFS
World Bar Association
Suite 1811, Minto Plaza
38 Elm Street
Toronto, Ontario
M5G 2K5
FOR DEFENDANTS
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020524
Docket: T-2221-98
BETWEEN:
ROLLS-ROYCE plc, ROLLS-ROYCE &
BENTLEY MOTOR CARS LIMITED, and
BENTLEY MOTORS LIMITED
Plaintiffs
- and -
IAN D. FITZWILLIAM ROLLS-ROYCE LIMITED,
ROLLS-ROYCE MOTOR CARS LIMITED and
BENTLEY MOTORS LIMITED
Defendants
REASONS FOR ORDER AND ORDER