Toyota Jidosha Kabushiki Kaisha v. Marrand Auto Inc., 2024 FC 1776
Associate Justice Horne - 2024-11-07
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What the plaintiffs characterize as trademark infringement the defendant describes as lawful dealing in grey goods. The defendant has brought a motion to strike the statement of claim in its entirety, without leave to amend. The motion is granted in part. ... section 36 [of the Competition Act] is limited to conduct that is contrary to Part VI. To the extent the defendant’s activities give rise to a claim or cause of action based on Part VII.1, that is for the Commissioner of Competition to pursue, not Toyota. ... I am therefore satisfied that the Competition Act allegations are doomed to fail and must be struck. ... Toyota argues that passing off can be established in three ways: the manner in which the goods are shipped; that the goods were damaged in transit; and the absence of a Toyota warranty. I am not satisfied that non-compliance with a brand owner’s shipping and handling requirements, without more, can constitute infringement under section 7(b). ... While the argument is novel, I am not satisfied that it is doomed to fail. Leave to amend the Claim to include allegations of misrepresentation based on implied warranty is therefore granted. ... I am satisfied that it is at least arguable that the sale of damaged merchandise could be treated differently that simple resale, constitute “use” of a trademark, and that such sale could depreciate the goodwill associated with a trademark. Leave to amend the statement of claim is granted in this respect.
Decision relates to:
- T-627-23 - TOYOTA JIDOSHA KABUSHIKI KAISHA trading as TOYOTA MOTOR CORPORATION et Al.