High Award For “Queen Of Tarts” On Default Judgment In Trade-mark Infringement Case

Taylor Vanderhelm is a JD candidate at the University of Alberta.

The Federal Court of Canada awarded significant damages in a Pick v. 1180475 Alberta Ltd. et al. 2011 FC 1008, a suit for trade-mark infringement on August 18, 2011. The trade-mark in question was “The Queen of Tarts,” owned by Stephanie Anne Pick of Toronto, and the decision came as a default judgment after the Defendant failed to submit a Statement of Defence within the prescribed time.

The case is notable since the court awarded the Plaintiff $10,000 in damages plus costs for trade-mark infringement and the tort of passing off in violation of section 20 and subsection 7(b) of the Trade-marks Act. Also intriguing is the apparent lack of reasoning behind the quantum of damages awarded. This lack of specificity makes it difficult to assess whether a just result was reached given the high award and one-sided nature of the proceedings.

Ms Pick adopted “The Queen of Tarts” trade-mark on approximately February 14, 1999 and later registered the mark on March 31, 2005 with the Canadian Trade-marks Office for use in association with wholesale and retail store services specializing in baked goods. According to Ms Pick’s Affidavit, she used the trademark extensively throughout Canada in advertising, web sites, product packaging, and at her retail store location in Toronto. As such, the court found that such use of “The Queen of Tarts” trade-mark resulted in the mark being well known throughout Canada for goods and services offered by Ms Pick.

Ms Pick initiated the action in November 2010 after discovering the Defendant operated a stall at the Farmer’s Market in downtown Edmonton, Alberta and had also opened a retail store under the name “Queen of Tarts.” In light of this, the court found the Defendant’s mark to be confusingly similar with “The Queen of Tarts” according to ss. 6(5) of the Trade-marks Act, and found infringement of the mark according to s. 20 and passing off under ss. 7(b).

The court found the Defendant personally responsible for damages since, as director, she had authorized or ordered the infringement and/or passing off of the mark by either failing to conduct a proper preliminary search, or did conduct a proper search but chose to ignore the results of said search. The Court awarded $10,000 in damages as compensation for lost sales and damage to the Plaintiff’s reputation and goodwill.

Throughout the analysis, the only mention by the court as to any method of calculation other than judicial discretion, was a reference to conventional awards regarding counterfeit infringement in default judgments. With no baseline to base an opinion on, it is hard to consider the fairness of this outcome given its subjective nature.