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Date: 20050907

Docket: T-1499-05

Citation: 2005 FC 1221

Ottawa, Ontario, September 7, 2005

Present:           The Honourable Mr. Justice Lemieux                                 

BETWEEN:

                                              SHAHRVAND PUBLICATION LTD.

                                                                                                                                               Plaintiff

                                                                           and

                                                     SHAHRVAND B.C. LTD. and

                                                HADI EBRAHIMI-ROUDBARAKI

                                                                                                                                         Defendants

                                            REASONS FOR ORDER AND ORDER

[1]                The plaintiff seeks an interim ex parte injunction prohibiting the defendants from using the unregistered trade mark SHAHRVAND (the trade mark) in connection with the publication by the defendants of a weekly newspaper directed to the Persian community in Vancouver, British Columbia.


[2]                The affidavit evidence before me indicates that since 1994 the plaintiff and the defendants entered into an oral arrangement described by the plaintiff as a licence agreement concerning the use of the trade mark in connection with the defendants' publication of its newspaper in British Columbia.

[3]                Rule 374 of the Federal Court Rules, 1998 (the Rules) and the jurisprudence govern the issuance of an interim ex parte injunction.

[4]                During argument I indicated to counsel for the plaintiff that I was not satisfied the plaintiff met the conditions of Rule 374 for the issuance of the injunction sought without notice to the defendants.

[5]                However, I did agree with counsel for the plaintiff that the current publication by the defendants of their newspaper would appear to contain on its face a blatant misrepresentation that the newspaper is published by the defendants in association with the plaintiff (see page 77 of the motion record of the plaintiff).

[6]                The evidence before me clearly demonstrates at this point in time there is no longer any association between the plaintiff and the defendants and that the public is thereby misled to the irreparable detriment of the plaintiff and that the defendants should be prohibited from claiming such association as currently set out in the defendants' newspaper.


[7]                To be clear, the injunction which the Court issues does not prohibit the defendants from publishing their newspaper under the name SHAHRVAND but prohibits the defendants from claiming that the newspaper being currently published by the defendants is done in association with the plaintiff.

[8]                Nothing in the Court's decision prevents the plaintiff, with notice to the defendants, from seeking an injunction, interim or interlocutory, in the terms described in paragraph one of these reasons.

                                                                       ORDER

THIS COURT ORDERS that:

1.          The plaintiff's application for an interim ex parte injunction prohibiting the defendants from using the unregistered trade mark SHAHRVAND in connection with the defendants' newspaper publication is dismissed without prejudice to the plaintiff to renew its application upon due notice to the defendants by service of the plaintiff's motion record.

2.          The defendants are hereby prohibited for a period of 14 days in accordance with Rule 374 from indicating directly or indirectly in its publication that the newspaper is published in association with the plaintiff.

3.          Costs in the cause.

                                                                                                                              "François Lemieux"

                                                                                                                                                   J.F.C.


                                                             FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:               T-1499-05

STYLE OF CAUSE:             SHAHRVAND PUBLICATION LTD.

v.

SHAHRVAND B.C. LTD. and

HADI EBRAHIMI-ROUDBARAKI

PLACE OF HEARING -      

BY VIDEO CONFERENCE: OTTAWA (ONTARIO) and TORONTO (ONTARIO)

DATE OF HEARING:           SEPTEMBER 7, 2005

REASONS FOR ORDER

AND ORDER:                       THE HONOURABLE MR. JUSTICE LEMIEUX

DATED:                                  SEPTEMBER 7, 2005

APPEARANCES:

MR. GLEN M. PERINOT FOR THE PLAINTIFF

SOLICITORS ON THE RECORD:

HEYDARY HAMILTON LLP FOR THE PLAINTIFF

TORONTO, ONTARIO

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