When Not To Seek A Summary Trial!

• Law Firm: Goldman Sloan Nash & Haber LLP
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Trademark, Advertising, Marketing & Branding
• Author: Mr John McKeown
• Published date: 22 May 2023

When Not to Seek a Summary Trial! Dermaspark Products Inc v. Patel 2023 FC 388

A defendant categorized the plaintiff's claims as an abuse of process and asserted the plaintiff was a "trademark bully". The defendant brought a motion for summary trial to dismiss the plaintiff's action.

The Facts The plaintiff is based in Israel and manufactures professional facial treatment products, including a specific line of products. This product line includes a machine developed to administer treatments (the Plaintiff's Machine), the Capsugen (a disposable component of the machine) and treatments such as NeoBright and NeoRevive.

The plaintiff claims that the defendant purchased a counterfeit copy of the Plaintiff's Machine and related products online and used the machine and the products at its spa from February 2018 to approximately March 2020. The plaintiff asserted the defendant's use of counterfeit products and the plaintiff's advertising and marketing material infringed their rights under the Trademarks Act, and the Copyright Act. In addition, the counterfeit products are dangerous to use and that the sale of the counterfeit machine is prohibited as the plaintiff's Machine is a Class III medical device, licenced by Health Canada.

The defendant alleged the machine it purchased was a "real" machine and its products were the same as those sold by the plaintiff. However, on receipt of the plaintiff's cease and desist letter it immediately disposed of the machine and products and stopped all use of plaintiff's promotional material.

The Summary Trial

Both parties were content to proceed by way of summary trial. The Judge observed while this was not determinative, it was an important factor in assessing whether it is "suitable" and "just" to proceed by summary trial. If all parties are prepared to proceed through the simplified and typically less expensive summary trial process, this suggests it was just to proceed in this manner. A Court should be reluctant in such circumstances to require the parties to incur the further cost and delay of proceeding to a full trial. Conflicting evidence and credibility issues do not preclude summary trial unless it would be unjust to decide the issues without trial.

In addition to the affidavits filed by the parties, three witnesses testified on behalf of the plaintiff and one on behalf of the defendant. More weight was given to the evidence of the plaintiff's witnesses. The evidence of the defendant's witness regarding the...