Will The Supreme Court Rein In Evasive Defendants? Equustek v Google Inc

The persistence of a small technology company in British Columbia may expand the options available in Canadian courts to enforce intellectual property rights.

Equustek Solutions Inc. sued elusive defendants for violation of its trade secrets and trademarks. Like many other IP owners, it obtained several different court orders to try to prevent the breaches and shut down the unlawful business. But the defendants continued to rely on the anonymity of the Internet to conceal their locations, and frequently changed web addresses, all to evade criminal and civil prosecution.

Equustek then asked the BC courts to grant a novel order against Google, which was not a defendant in the lawsuit. The order would effectively remove all of the defendants' web pages from Google's search engine results, anywhere in the world. Equustek succeeded.

Google, concerned about the implications, has persuaded the Supreme Court of Canada to hear the case.

Pre-hearing Orders to Assist Plaintiffs

In compelling cases, civil courts have created limited and specific pre-hearing remedies to assist private litigants to preserve and protect their legal rights, particularly against those who show disregard for the rule of law. These novel orders often take the name of the first case in which they were granted.

A Mareva injunction1 may be obtained to freeze a defendant's assets before they can be dissipated - a particularly useful tool in fraud cases. The order is obtained without notice to the defendants and may be granted in Canada to freeze assets worldwide, as money moves across borders with relative ease.

Then there is an Anton Piller order - effectively a civil search warrant.2 These Orders, also obtained without formal notice, authorize a plaintiff to have surprise access to physical premises and electronic records of a defendant to locate and preserve evidence of wrongdoing. The order requires the plaintiff to show that the defendant would otherwise be likely to destroy that evidence if served with a claim in the ordinary manner.

For these remedies to be effective, a plaintiff must know where the defendants or their assets are. If that information is not known, or if the plaintiff does not yet know who the defendants are, the courts may assist in obtaining evidence in the hands of a third party.

In a third seminal case, Norwich Pharmacal knew that its patent was being infringed, but did not know the names of the infringers. It successfully applied to an English court to...