On February 9 2017, in Sleep Country Canada Inc v Sears Canada Inc, 2017 FC 148, the Federal Court issued rare interlocutory relief to a plaintiff in a trademark case.

An interlocutory injunction is an extraordinary and powerful remedy. For over 20 years interlocutory injunctions have been few and far between in the Federal Court (apart from in counterfeiting cases). However, for the past five years the Federal Court has sent informal signals to the IP bar indicating that it would be prepared to issue pre-trial injunctions on suitable evidence of irreparable harm.

The first reported decision in many years where the Federal Court granted an interlocutory injunction in a trademark infringement case was issued on February 20 2015 (for further details please see "Interlocutory injunction in Federal Court trademark case ‒ a sign of things to come?"). However, the facts of that case were very specific, since the defendant had launched its mark before the plaintiff as a calculated pre-emptive strike to undermine the plaintiff's new brand.

In contrast, Sleep Country involves a much more traditional trademark infringement fact pattern, in which the plaintiff's 25-year-old slogan "Why buy a mattress anywhere else?" was threatened by its competitor's new slogan "There is no reason to buy a mattress anywhere else". This reasoned decision, which is over 60 pages long, may now set out a roadmap for brand owners seeking pre-trial injunctive relief for trademark infringement in Canada.

For further information on this topic please contact Daniel Anthony at Smart & Biggar/Fetherstonhaugh by telephone (+1 613 232 2486) or email ([email protected]). The Smart & Biggar/Fetherstonhaugh website can be accessed at www.smart-biggar.ca.