PRACTICE |
Affidavits |
Tommy Hilfiger Licensing v. Persons Unknown
T-855-00
Pelletier J.
31/7/00
15 pp.
Seizure of counterfeit goods (leisure clothing) at flea market pursuant to Anton Piller order--Application for interlocutory injunction maintaining order--Issue nature of evidence required to obtain interlocutory injunction upon review of execution of "rolling" Anton Piller order--Plaintiff relied on affidavit of expert's opinion--Not sufficient as neither referring to specific intellectual properties nor to specific goods--Serious issue normally requiring extremely limited review of case on merits--Herein, however, where most defendants do not attend motion reviewing order against them, decision amounting to final determination of actions--Expert opinion herein not receivable as Court just as capable of examining and comparing--Furthermore, as most defendants unrepresented, they should be given observations upon which Court will decide whether sufficient case has been made out to justify seizure and injunction--This could be done by putting before Court affidavit of someone who has examined plaintiff's intellectual properties and seized goods and who details observations and conclusions thereon and by putting intellectual properties and goods before Court--Derivative evidence (comparison with infringing design) not acceptable as substitute for best evidence (comparison with mark for which plaintiff can claim protection)--Evidence therefore insufficient to establish serious issue to be tried and application for interlocutory injunction dismissed--Goods seized must be returned to defendants.