Date: 20010208
Docket: A-513-99
Citation: 2001 FCA 11
EVANS, J.A.
SHARLOW, J.A.
BETWEEN:
ITV TECHNOLOGIES INC.
Appellant
- and -
WIC TELEVISION LTD.
Respondent
(Delivered orally from the Bench
on February 8, 2001 at Vancouver, British Columbia)
[1] In 1997, the appellant commenced an action against the respondent seeking expungement of a trademark consisting of the letters "ITV" and a design trademark including those letters. In that action the appellant also sought a declaration that its use of "itv.net" as its domain name was not precluded by those trademarks. The respondent filed a defence and counterclaim, seeking damages and other relief for infringement.
[2] In 1999, the appellant moved for summary judgment claiming expungement of both registered trademarks, an order to amend the trademark register by the insertion of a disclaimer, a declaration that its domain name "itv.net" and its corporate name ITV Technologies Ltd. did not infringe, and certain ancillary relief. The motion for summary judgment was denied on August 10, 1999. The appellant now appeals that order.
[3] Counsel for the appellant argued that the Motions Judge erred in denying the motion because the material was voluminous and the questions of law were novel. We agree that those would not be valid grounds for refusing summary judgment. However, we do not accept that the motion was refused on either of those grounds.
[4] Counsel for the appellant argued that the Motions Judge believed that he could not grant summary judgment "except in the clearest of cases". If the Motions Judge had applied that standard, he would have been in error. However, reading his reasons for decision in their entirety, it is apparent that he understood and applied the correct test as set out in the decision of Tremblay-Lamer J. in Granville Shipping Co. v. Pegasus Lines Ltd., [1996] 2 F.C. 853 (T.D.) and the "best foot forward" principle from Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225 (Ont. Gen. Div.).
[5] As we read the decision of the Motions Judge, the reason for the denial of the motion for summary judgment was as follows:
[23] It is clearly apparent to me that granting summary judgment would not be appropriate with the facts as they exist. The evidence raises many valid and complex issues of fact and law such as distinctiveness and confusion.
[24] I am satisfied that this case, in its present state, with volumes of material requiring further and better explanation, is not ready for determination by virtue of a summary judgment.
[6] This indicates that the Motions Judge was not satisfied that, on the basis of the material before him, he could determine the relevant facts and properly apply the relevant law. This is a conclusion as to the weight and probity of evidence and the inferences to be drawn from the evidence that, absent palpable and overriding error, cannot be reversed on appeal. We are not persuaded that there is any such error. For that reason, the appeal will be dismissed with costs in the cause.
(Sgd.) "K. Sharlow"
J.A.
February 8, 2001
Vancouver, British Columbia
Date: 20010208
Docket: A-513-99
Citation: 2001 FCA 11
CORAM: NOËL J.A.
BETWEEN:
ITV TECHNOLOGIES INC.
Appellant
- and -
WIC TELEVISION LTD.
Respondent
Heard at Vancouver, British Columbia
JUDGMENT delivered at the Bench, February 8, 2001.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-513-99
STYLE OF CAUSE: ITV Technologies Inc
v.
Wic Television Ltd
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 6, 2001
REASONS FOR JUDGMENT BY SHARLOW, J.A.
CONCURRED IN BY: Noël, J.A. and Evans, J.A.
DATED: February 8, 2001
APPEARANCES:
Mr. Paul Gornall For the Appellant
Mr. Brian Edmonds For the Respondent
SOLICITORS OF RECORD:
Paul D. Gornall
Barrister & Solicitor
Vancouver, BC For the Appellant
McCarthy Tétrault
Barristers & Solicitors
Toronto, Ontario For the Respondent