Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Appellant Pro Swing Inc., an Ohio corporation, is a manufacturer and retailer of customized golf clubs and golf club heads. It sells a line of golf clubs and golf club heads under the trademark “Trident”. On April 27, 1998, the Appellant filed a complaint in the U.S. District Court against eight named defendants for trade-mark infringement. The Respondent, Elta Golf Inc., an Ontario corporation, was one of the named defendants in the complaint. In the complaint, the Appellant alleged that the Respondent was selling and offering for sale golf clubs and/or golf club heads under the infringing trademark “Rident” on its Internet web site. In July 1998, the Appellant and Respondent executed a settlement agreement. On July 28, 1998, Judge Paul R. Matia of the U.S. District Court, endorsed a consent decree that was also signed by the parties. In the consent decree, the Respondent agreed, amongst other things, that it was enjoined from selling golf clubs or golf components bearing the “Trident” trade-mark or other confusingly similar versions of that mark, other than golf clubs or golf club components purchased by the Respondent from the Appellant or its authorized distributor. In February, 2003, Judge Matia found the Respondent in contempt of the consent decree. The judge ordered, amongst other things, an accounting of its sales of infringing golf clubs and/or golf club components.

The Respondent did not comply with the contempt order. As a result of the Respondent’s non-compliance with the order to make an accounting, the Appellant has not been able to provide the U.S. District Court with a proposed compensatory damages award.

In June 2003, the Appellant filed a statement of claim against the Respondent in the Ontario Superior Court of Justice. In the statement of claim, the Appellant claimed that the Ontario courts should recognize and enforce the consent decree and the contempt order. In response, the Respondent filed a statement of defence claiming that the two U.S. District Court orders were not capable of recognition and enforcement in Ontario because they were not judgments for fixed sums of money. The Appellant moved for summary judgment and requested a declaration that the consent decree and the contempt order are valid and enforceable in Ontario. Summary judgment was granted. The consent decree and certain paragraphs in the contempt order issued by the U.S. District Court were held to be valid and enforceable in Ontario by the motions judge. The Court of Appeal allowed the appeal. The order of the motions judge was set aside and the motion was dismissed with costs. The cross-appeal was dismissed without costs.