Pick v. 1180475 Alberta Ltd. (Queen of Tarts)

In an action for trade-mark infringement and passing off, the Plaintiff brought a motion for default judgment as a result of the failure by the Defendants to serve and file a Statement of Defence within the prescribed time. The Court found that, as a result of the registration of the Plaintiff’s trade-mark, the Plaintiff has the exclusive right to the use throughout Canada of the trade-mark in respect of its wares and services. The Court then considered whether the trade-marks and trade-names are confusing as set out in ss. 6(5) of the Trade-marks Act, concluding that the trade-mark and trade-name used by the Defendants is clearly confusing with the registered trade-mark of the Plaintiff. The Court further concluded that the Defendants were liable for statutory passing off and that the individual Defendant, Ms. Kearney, was personally liable. The Court awarded damages in the amount of $10,000.00 as compensatory damages in relation to lost sales as well as in respect of the damage to the Plaintiff’s reputation and goodwill.