Case information

Intellectual property — Industrial design — Infringement — Costs — Appeal — Evidence — New evidence — Whether the admitted false advertising of a company in violation of the Competition Act, R.S.C. 1985, c. C-34, precludes the company from registering intellectual property that benefits from the false advertising, insofar as the registration of intellectual property is a domain or space that belongs to the Canadian public that has been violated by the company’s lack of ethics and unequitable conduct — Whether a company that has registered its intellectual property pursuant to one of Canada’s Acts, may either bring an action for infringement or continue with an infringement action or appeal, after that company has admitted in another court that its advertising that its intellectual property benefits from was 100 percent false — When a company makes an admission of false advertising in another court that would have either nullified or limited issues of liability, damage, or costs in an action seeking enforcement of its intellectual property registration that has already been tried but is awaiting appeal, must an appeals court, in the interest of justice, send the action back to the trial court for further proceedings based upon the new admission evidence if the test in Palmer v. The Queen, [1980] 1 S.C.R. 759, is met?

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The Federal Court of Appeal dismissed the appeal of the applicant, Double Diamond Distribution Ltd., from two decisions of the Federal Court in which the Federal Court:

(1) Concluded that the Canadian industrial design number of the respondents, Crocs Canada, Inc. and Crocs, Inc. (“Crocs”), was valid and that the applicant infringed it and awarded the respondents an accounting of the applicant’s profits (“Liability Decision”); and

(2) Ordered the applicant to pay costs to the respondents in a lump sum amount (“Costs Decision”).

At the Federal Court of Appeal (“FCA”), in appealing the Costs Decision, the applicant brought two motions to introduce new evidence, which were dismissed. Regarding the appeals from the Liability Decision and Costs Decision, the FCA held that the applicant raised a number of issues on appeal that, in its view, did not establish an error in accordance with the applicable standards of review as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.