Milliken & Co. v. Interface Flooring Systems ( Canada ) Inc.
T-3016-92
Nadon J.
18/3/94
10 pp.
Application under Federal Court R. 419(1)(a) to strike amendments to statement of claim alleging infringement of industrial design registration on ground not disclosing reasonable cause of action -- Prior to June 1993 when amendments to Industrial Design Act came into force, plaintiffs not having cause of action for infringement of industrial design registration because not "proprietors" -- Amendment to s. 4 permitting proprietor, whether first or subsequent proprietor, to register design -- S. 30(1) providing application for registration filed before June 1993, subject to amended Act, and s. 30(3), providing application for registration made before June 1993 by proprietor of design, whether first or subsequent, deemed made in accordance with amended Act -- Plaintiff's application for registration deemed made in accordance with provisions of amended Act as it read immediately after coming into force on June 9, 1993 -- Pursuant to amended Act, ss. 4, 9 plaintiff acquired exclusive right to its industrial design -- Whether exclusive right enforceable in respect of infringement occurring in 1991, 1992 -- S. 30(2) providing "any matter arising after this section came into force in respect of a design registered on the basis of an application filed before it came into force shall be . . . dealt with in accordance with . . . the Act as it reads when the matter arises" -- S. 30(2) clearly meaning matter arising after coming into force of amended Act, subject to provisions of amended Act -- As this matter arising prior to coming into force of amended Act, subject to unamended Act -- S. 30(2) not retroactive -- As plain and obvious plaintiff's case cannot possibly succeed, amendments to statement of claim struck -- Federal Court Rules, C.R.C., c. 663, R. 419(1)(a) -- Industrial Design Act, R.S.C., 1985, c. I-9, ss. 4 (as am. by S.C. 1993, c. 15, s. 13), 30 (as enacted idem, s. 24).