- Default Judgment Granted in Trademark Infringement Case
- November 28, 2016 | Authors: Jillian Brenner; Adrian J. Howard; Beverley Moore; Chantal Saunders
- Law Firm: Borden Ladner Gervais LLP - Ottawa Office
- Maxwell Realty Inc. v. Omax Realty Ltd., 2016 FC 1122
Maxwell Realty Inc. (Maxwell) brought an ex parte motion for default judgment against Omax Realty Ltd. (Omax) in its trademark infringement suit.
Maxwell is a full service real estate agency operating under the registered trademark MAXWELL. Omax used the term OMAXWELL in association with the Omax real estate business. Maxwell sent a cease and desist letter. Omax responded with a franchising inquiry, and continued to use the name. Internet search evidence was filed. In addition, there is evidence that a number of real estate agents associated with Omax have been or are subject to professional ethics violations. The Statement of Claim was served twice on Omax, with no response.
The Court considered the test for confusion and found that the risk of confusion is high. The Court also held that Omax's online presence with the prominent use of the word "Maxwell" with only an "O" in front of it is an attempt to pass of their services as being associated with the Plaintiff's. Furthermore, while the Plaintiff had not provided direct evidence of loss of goodwill, they had provided evidence of professional sanctions against agents associated with the Defendant. The Defendant had wrongly infringed the trademark and damages could be assessed. Default judgment was granted with compensatory damages of $10,000 plus $5,000 costs.