Agros Trading Confectionery SP.Z.O.O. v K-Max Corp., 2015 ONSC 3166

The Ontario Superior Court had previously issued an injunction to prevent the sale of candy snacks known as “Classic Sesame” because they were found to be passing off and infringing the copyright of “Sesame Snaps”. Two non-parties to the previous litigation now move to have that judgment set aside or varied so that they are excluded from the injunction. They were unsuccessful.

The Moving Parties argued the Court could not have found confusion in the absence of expert evidence, but the Court disagreed. The Court held that the Judge properly put themselves in the position of the average person going to the market, and agreed that the products were confusingly similar to each other.

As for the copyright claim, the Court found that the plaintiff, a Polish Corporation, is a member of a treaty country and therefore has standing to bring the claim.

It was held that the box design was difficult to distinguish between the two brands, and so the first author held exclusive rights.

Lastly, it was argued that the injunction should not have been issued as there was no evidence of damages. The Court found that although equitable relief fills in where damages are an inadequate remedy, the damages were obvious to everyone, at least nominal damages.