Nintendo of America Inc. et al. v. Camerica Corp. et al., (1991) 127 N.R. 232 (FCA)

• Judge: Heald, Hugessen and Linden, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 24, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 127 N.R. 232 (FCA)

Nintendo of Am. v. Camerica Corp. (1991), 127 N.R. 232 (FCA)

MLB headnote and full text

Nintendo of America Inc. and Shigeru Miyamoto (appellants/plaintiffs) v. Camerica Corporation and Willow Fun World Ltd. (respondents/defendants)

(A-105-91)

Indexed As: Nintendo of America Inc. et al. v. Camerica Corp. et al.

Federal Court of Appeal

Heald, Hugessen and Linden, JJ.A.

May 24, 1991.

Summary:

The plaintiff alleged that the defendants' sale of their product known as "Game Genie", a hardware tool designed for use with home video games, infringed the plaintiffs' trademark and copyright. The plaintiffs sued the defendants for damages for trademark and copyright infringement. The plaintiff then applied for an interlocutory injunction restraining the defendants' activities pending trial.

The Federal Court of Canada, Trial Division, in a judgment reported 42 F.T.R. 12, dismissed the injunction application. The plaintiff appealed.

The Federal Court of Appeal dismissed the appeal.

Injunctions - Topic 1610

Interlocutory or interim injunctions - Circumstances when injunction will not be granted - [See Injunctions - Topic 6307 ].

Injunctions - Topic 1610

Interlocutory and interim injunctions - Circumstances when injunction will not be granted - [See Injunctions - Topic 6311 ].

Injunctions - Topic 6307

Injury to trade - Improper use of trademark names or designs - Nintendo manufactured video games and machines on which to play the games - Camerica sold a product, the "Game Genie", a hardware tool designed for use with video games (e.g., Nintendo games), which allowed players to enter special codes and temporarily alter game play features - The game boxes and manual stated that the "Game Genie" worked on many Nintendo games but it was not manufactured or endorsed by Nintendo - Camerica used Nintendo's trademark in this context - Nintendo sued for trademark infringement and sought an interlocutory injunction - The Federal Court of Appeal affirmed the refusal to grant the injunction.

Injunctions - Topic 6311

Injury to trade - Copyright infringement - Nintendo manufactured video games and machines on which to play the games - Camerica sold a product, the "Game Genie", a hardware tool designed for use with video games (e.g., Nintendo games), which allowed players to enter special codes and temporarily alter game play features - Nintendo sued for copyright infringement and sought an interlocutory injunction - The Federal Court of Appeal affirmed the refusal to grant the injunction; although there was a serious issue, Nintendo failed to establish irreparable harm and the balance of convenience favoured not granting the injunction.

Cases Noticed:

Metropolitan Stores (M.T.S.) Ltd. et al. v. Manitoba Food and Commercial Workers, Local 832, and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, appld. [para. 2].

Toth v. Minister of Employment and Immigration (1988), 86 N.R. 302, refd to. [para. 2].

Turbo Resources Ltd. v. Petro Canada Inc. (1989), 91 N.R. 341; 24 C.P.R. 1, refd to. [para. 2].

Dart Industries Canada Ltd. v. Algonquin Mercantile Corporation, 66 C.P.R. 121, appld. [para. 5].

Counsel:

I.V.R. Nordheimer and C.W. Caverly, for the appellant/plaintiffs;

R. Slaght and B. Sookman, for the respondent/defendants.

Solicitors of Record:

Fraser & Beatty, Toronto, Ontario, for the appellant/plaintiffs;

McCarthy, Tétrault, Toronto, Ontario, for the respondent/defendants.

This case was heard on May 23-24, 1991, at Toronto, Ontario before, Heald, Hugessen and Linden, JJ.A., of the Federal Court of Appeal.

On May 24, 1991, Heald, J.A., orally delivered the following judgment for the Federal Court of Appeal.