Date: 20040428
Docket: T-1933-03
Citation: 2004 FC 628
Montréal, Quebec, the 28th day of April, 2004
Present: Prothonotary Richard Morneau
BETWEEN:
THE CHEESECAKE FACTORY INCORPORATED
and
THE CHEESECAKE FACTORY ASSETS CO LLC.
Plaintiffs
and
9092-1651 QUÉBEC INC.
(doing business as "RESTAURANT ELIXOR")
Defendant
Motion on behalf of the defendant for:
1. Striking out paragraph 9 of the Statement of Claim in its entirety without leave to amend pursuant to Rule 221(1)(a) on the basis that the allegations contained in paragraph 9 of the Statement of Claim do not disclose a reasonable cause of action and are otherwise outside the jurisdiction of this Honourable Court;
2. Requiring the plaintiffs to furnish particulars, pursuant to Rule 181, of the specific embodiments of all the asserted artistic works itemized in paragraphs 6(a) and 6(b) of the Statement of Claim;
3. Such further and other order which this Honourable Court may deem just;
4. Costs to the defendant in any event of the cause.
REASONS FOR ORDER AND ORDER
[1] On the request for particulars made by the defendant against paragraphs 6(a) and (b) of the plaintiffs' statement of claim, that application must be dismissed since I consider that the comparison exercise contained in Exhibit C of Mr. Greathouse's affidavit, dated April 21, 2004, in connection with the photographs to be found at Exhibit B of Ms. Paulhus' affidavit dated April 23, 2004, provides the defendant with more than sufficient information of what he is alleged to have made copies of, so that the latter may now submit a coherent defence.
[2] The application to strike paragraph 9 of the said statement of claim must also be dismissed, since as stated by the plaintiffs this paragraph is not intended to support a cause of action for infringement of trade marks or unfair competition, simply to support aspects of the plaintiff's cause of action under the Copyright Act, R.S.C. 1985, c. C-42.
[3] The defendant's motion is accordingly dismissed with costs.
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"Richard Morneau" |
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Prothonotary |
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
STYLE OF CAUSE:
T-1933-03
THE CHEESECAKE FACTORY INCORPORATED
and
THE CHEESECAKE FACTORY ASSETS CO LLC.
Plaintiffs
and
9092-1651 QUÉBEC INC. (doing business as "RESTAURANT ELIXOR")
Defendant
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 26, 2004
REASONS FOR ORDER: Richard Morneau, prothonotary
DATED: April 28, 2004
APPEARANCES:
| Allen D. Israel |
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FOR THE PLAINTIFFS |
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| François Guay |
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FOR THE DEFENDANT |
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SOLICITORS OF RECORD:
| Lapointe, Rosenstein Montréal, Quebec |
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FOR THE PLAINTIFFS |
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| Smart & Biggar Montréal, Quebec |
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FOR THE DEFENDANT |