Michael Kors LLC v. Beyond the Rack Enterprises Inc.

This is the appeal of a Prothonotary’s decision to refuse the Defendant’s motion to strike out paragraphs in the Amended Statement of Claim for a trade-mark infringement suit, and to grant the Plaintiff’s motion for a further and better affidavit of documents.

The Court confirmed that pleadings should not be struck unless it is “plain and obvious” that it discloses no reasonable cause of action. The Court held that it cannot be said that the claim is so bereft of material facts that it could constitute a fishing expedition.

The Defendant’s defences of grey market goods and exhaustion of rights will be for the Defendant to prove in the action. The Orders for further production and a “Counsel’s Eyes Only” provision in the Protective Order were also upheld.