Positive Attitude Safety System Inc. et al. v. Albian Sands Energy Inc. et al., 2005 FCA 332
Judge | Desjardins, Rothstein and Pelletier, JJ.A. |
Court | Federal Court of Appeal (Canada) |
Case Date | October 17, 2005 |
Jurisdiction | Canada (Federal) |
Citations | 2005 FCA 332;(2005), 343 N.R. 235 (FCA) |
Positive Attitude Safety v. Albian Sands (2005), 343 N.R. 235 (FCA)
MLB headnote and full text
Temp. Cite: [2005] N.R. TBEd. OC.046
Albian Sands Energy Inc. and Jeff Stibbard (appellants/respondents by cross-appeal) v. Positive Attitude Safety System Inc., James S. Burns and Claire Burns (respondents/appellants by cross-appeal)
(A-407-04; 2005 FCA 332)
Indexed As: Positive Attitude Safety System Inc. et al. v. Albian Sands Energy Inc. et al.
Federal Court of Appeal
Desjardins, Rothstein and Pelletier, JJ.A.
October 17, 2005.
Summary:
The plaintiffs brought an action against the defendants for passing off respecting the plaintiffs' unregistered Positive Attitude Safety System and PASS trademarks and copyright infringement respecting the plaintiffs' PASS materials (i.e., a worker driven safety system). The defendants brought a motion under rule 216 for summary judgment dismissing the action, submitting that there was no genuine issue for trial. In response, the plaintiffs sought dismissal of the defendants' motion and summary judgment on the claims.
The Federal Court, in a judgment reported (2004), 258 F.T.R. 30, held that there was a genuine issue for trial respecting trademark infringement (passing off) and copyright infringement. The court was satisfied that copyright infringement occurred. The trial judge would have to determine, inter alia, whether the defendants were protected by a licensing agreement. The court set out the issues to be determined at trial. The defendants appealed the trial judge's finding that the plaintiffs had a valid copyright in the PASS materials, submitting that the issue was not before the court. The defendants also claimed that the trial judge erred in finding a copyright infringement and a passing-off. The plaintiffs cross-appealed.
The Federal Court of Appeal allowed the appeal and granted summary judgment dismissing the plaintiff's trademark and copyright infringement claims. The trial judge erred in finding a copyright infringement subject to the effect of a purported licence (consent). Until the issue of consent was resolved, there could be no finding of infringement. The court dismissed the cross-appeal.
Copyright - Topic 4642
Defences - Consent - The defendants allegedly copied the plaintiffs' worker driven safety system (PASS) to develop, for internal use, their own system (ASESS) - The trial judge found copyright infringement subject to a determination of whether the plaintiffs consented to such use under a purported licence - The Federal Court of Appeal held that copyright infringement required a lack of consent by the copyright owner - The trial judge erred in finding infringement subject to the effect of the purported licence - Such a finding was illogical - Until the issue of consent was determined, there could be no copyright infringement - See paragraphs 37 to 41.
Trademarks, Names and Designs - Topic 1806
Trademarks - Infringement - Test - Confusion with other marks - [See Trademarks, Names and Designs - Topic 3068 ].
Trademarks, Names and Designs - Topic 1807
Trademarks - Infringement - Use - General - [See Trademarks, Names and Designs - Topic 3068 ].
Trademarks, Names and Designs - Topic 3068
Trademarks - Unfair competition - Passing off - The plaintiffs brought an action against the defendants for passing off respecting the plaintiffs' unregistered Positive Attitude Safety System and PASS trademarks and copyright infringement respecting the plaintiffs' PASS materials (i.e., a worker driven safety system) - The trial judge found that any use by the defendants of the plaintiffs' trademark was internal - The defendants had in no way dealt with the system in a commercial way with others - The Federal Court of Appeal held that there could be a trademark infringement (Trade-marks Act, s. 7(b)) and passing off (s. 7(c)) only if there was "confusion" (s. 6(2)) and "use" (s. 4(1)) - Absent a transfer of the system in the course of trade, there could be no "confusion", no "use" and accordingly, no trademark infringement or passing off - The trial judge erred in failing to grant the defendants summary judgment dismissing the infringement and passing-off claims as presenting no genuine issue for trial - See paragraphs 29 to 35.
Statutes Noticed:
Copyright Act, R.S.C. 1985, c. C-42, sect. 27(1) [para. 39].
Trade-marks Act, R.S.C. 1985, c. T-13, sect. 4(1) [para. 31]; sect. 6(2) [para. 30]; sect. 7(b), sect. 7(c) [para. 14].
Counsel:
Michael D. Manson and Nicholas Fyfe, Q.C., for the appellant;
Bruce M. Green, for the respondent.
Solicitors of Record:
Smart & Biggar, Vancouver, B.C., for the appellant;
Oyen Wiggs Green & Mutala, Vancouver, B.C., for the respondent.
This appeal and cross-appeal were heard on April 14, 2005, at Vancouver, B.C., before Desjardins, Rothstein and Pelletier, JJ.A., of the Federal Court of Appeal.
On October 17, 2005, Pelletier, J.A., delivered the following judgment for the Court of Appeal.
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Table of Cases
...S.C.J. No. 84 ...................................................... 219 Albian Sands Energy Inc. v. Positive Attitude Safety System Inc., 2005 FCA 332, 259 D.L.R. (4th) 639, 43 C.P.R. (4th) 418 .......................... 154 Aldelo Systems Inc. v. Sinclair, 2010 ONSC 5229, [2010] O.J. No. ......
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Table of cases
...(Div. Ct.) ....................................................... 136 Positive Attitude Safety System Inc. v. Albian Sands Energy Inc., 2005 FCA 332, 43 C.P.R. (4th) 418, 259 D.L.R. (4th) 639 ..................... 139 Potter v. Broken Hill Pty. Co. Ltd. (1906), 3 C.L.R. 479, 12 A.L.R. 82 (......
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Copyright
...reasons is infringement at all: Kraft , above note 130 at [81]. 537 Albian Sands Energy Inc. v. Positive Attitude Safety System Inc. , 2005 FCA 332 at [39]. Similarly for criminal infringement: Laurier , above note 203. See generally D. Vaver, “Consent or No Consent: The Burden of Proof in ......
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Distrimedic Inc. v. Dispill Inc. et al., (2013) 440 F.T.R. 209 (FC)
...10 (F.C.A.), refd to. [para. 299]. Positive Attitude Safety System Inc. et al. v. Albian Sands Energy Inc. et al., [2006] 2 F.C.R. 50; 343 N.R. 235; 2005 FCA 332, refd to. [para. Cast Iron Soil Pipe Institute v. Concourse International Trading Inc. (1988), 19 C.P.R.(3d) 393 (T.M.O.B.), refd......
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Distrimedic Inc. v. Dispill Inc. et al., (2013) 440 F.T.R. 209 (FC)
...10 (F.C.A.), refd to. [para. 299]. Positive Attitude Safety System Inc. et al. v. Albian Sands Energy Inc. et al., [2006] 2 F.C.R. 50; 343 N.R. 235; 2005 FCA 332, refd to. [para. Cast Iron Soil Pipe Institute v. Concourse International Trading Inc. (1988), 19 C.P.R.(3d) 393 (T.M.O.B.), refd......
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Harmony Consulting Ltd. v. Foss (G.A.) Transport Ltd. et al., (2012) 435 N.R. 200 (FCA)
...190; 2012 FCA 12, refd to. [para. 29]. Positive Attitude Safety System Inc. et al. v. Albian Sands Energy Inc. et al., [2006] 2 F.C.R. 50; 343 N.R. 235; 2005 FCA 332, refd to. [para. 29]. 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.......
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Utah v. Canada (Attorney General), 2020 FC 923
...the case to meet: Milano Pizza, above at paras 107-108 and 112, citing Albian Sands Energy Inc. v Positive Attitude Safety System Inc., 2005 FCA 332 [Albian Sands] at para 45. F. Issues of credibility should not be decided on a motion for summary judgment. Observing live testimony and cross......
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Milano Pizza Ltd. v. 6034799 Canada Inc., 2018 FC 1112
...contrast to the situation that confronted the Federal Court of Appeal in Albian Sands Energy Inc. v. Positive Attitude Safety System Inc., 2005 FCA 332, [2006] 2 F.C.R. 50 (a decision setting aside summary judgment issued in favour of a non-moving party on issues that had not been raised in......
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Table of Cases
...S.C.J. No. 84 ...................................................... 219 Albian Sands Energy Inc. v. Positive Attitude Safety System Inc., 2005 FCA 332, 259 D.L.R. (4th) 639, 43 C.P.R. (4th) 418 .......................... 154 Aldelo Systems Inc. v. Sinclair, 2010 ONSC 5229, [2010] O.J. No. ......
-
Table of cases
...(Div. Ct.) ....................................................... 136 Positive Attitude Safety System Inc. v. Albian Sands Energy Inc., 2005 FCA 332, 43 C.P.R. (4th) 418, 259 D.L.R. (4th) 639 ..................... 139 Potter v. Broken Hill Pty. Co. Ltd. (1906), 3 C.L.R. 479, 12 A.L.R. 82 (......
-
Copyright
...reasons is infringement at all: Kraft , above note 130 at [81]. 537 Albian Sands Energy Inc. v. Positive Attitude Safety System Inc. , 2005 FCA 332 at [39]. Similarly for criminal infringement: Laurier , above note 203. See generally D. Vaver, “Consent or No Consent: The Burden of Proof in ......