Earlier this month, the Ontario Superior Court issued a couple of judgments relating to foreign IP proceedings with Ontario parties. In Blizzard v. Simpson, 2012 ONSC 4312, foreign copyright damages and an injunction were enforced. In Agemian v. Pactiv LLC, 2012 ONSC 4571, an “anti-suit” injunction was rejected, allowing an Illinois action relating to a North American patent settlement to proceed.

In Blizzard v. Simpson, Justice Brown held that the defendant had taken no steps in the California action and there were “no applicable defences of fraud, breach of natural justice, or public policy” to deny enforcement. In the Canadian proceeding, the defendant had argued that the plaintiff’s investigators had breached his website’s “terms of use” (as reproduced in the decision):

By using our website, you agree to the terms described below…
1. You are not an employee or know an employee of any companies listed:

• Activision Blizzard,
• Vivendi,
• Blizzard Entertainment, Inc.,
• Activision.

Noting that Blizzard’s investigators accessed the website in “the context of the investigation pursuant to the California Court order”, Justice Brown wrote:

[15] With respect to the Blizzard lawyers accessing Mr. Simpson’s map hack website and breaching the terms of his user agreement, Mr. Radhakant submitted that if infringers could protect themselves from infringement actions by posting terms and conditions on their websites, this would be an untenable position in IP law. I agree with the Applicant’s submissions, Mr. Simpson has not satisfied the onus of establishing any applicable defences to enforcement of the California judgment.”