Appeal court set to rule in Oasis case
What
has been a long and expensive legal battle for Montreal entrepreneur Deborah Kudzman, the former marketing and advertising executive who began her own home-based business selling skincare products made from pure olive oil, is about to take a crucial turn.
In August 2010, Kudzman won a stunning victory in Quebec Superior Court concerning a trademark fight over the past 6½ years with Industrie Lassonde Inc., the giant Quebec juice manufacturer, over the business use of the word “oasis.”
Kudzman markets her line of olive oil-based beauty products under the name Olivia’s Oasis, while Lassonde is known for its extensive line of Oasis fruit juices.
Justice Dionysia Zerbisias dismissed Lassonde’s claim of trademark infringement and request in July 2006 for a permanent injunction against L’oasis d’olivia Inc., finding there was a “glaring dissimilarity” between the two companies’ products and no chance of confusion among consumers – an important tenet of trademark law for companies seeking to protect the identity of their brands.
As well, the judge noted that Oasis has been used in 67 trade and corporate names in Canada, including 37 in Quebec and the company knew or should have known that.
But what really caused a stir, especially among intellectual property lawyers, was a decision by the judge to condemn Lassonde to pay Kudzman $125,000 – $100,000 to cover her legal fees and costs and $25,000 in punitive damages – on the grounds that there was an “improper use of procedure” and it had shown itself to be an “abusive litigator” as argued by Kudzman’s lawyer.
Zerbisias invoked relatively new provisions of the Quebec Code of Civil Procedure that allow a judge to order costs be reimbursed or damages in reparation imposed for prejudice suffered by one of the parties in cases where there is a major imbalance in financial resources of each side.
Indeed, the judge, while recognizing that Lassonde had a right to defend its trademark, found that Lassonde, “using their economic power and experience used a shotgun approach to attack ... on different fronts.” Beside the request for the injunction seeking an end to the use of Olivia’s Oasis name and the handing over all profits from the sale of the beauty products, Lassonde had sent a legal letter in 2005.
Following arguments heard this week, the Quebec Court of Appeal is set to rule as early as Friday on the case, which lawyers who work in trademarks and intellectual property say they are watching closely to see what test will be applied and conclusions drawn on the abuse of procedure question.
Alexandre Ajami, of Miller Thomson Pouliot LLP, is representing Lassonde, while Normand Painchaud, of Sylvestre Fafard Painchaud Avocats, is representing Kudzman. Davies Ward Phillips & Vineberg
LLP and its lawyers have raised $450,000 for an endowment fund that will – for years to come – be used to help provide legal support to more than two-dozen grassroots organizations in Montreal that are struggling to help the many disadvantaged and often downtrodden residents of the city.
The Davies Ward Phillips & Vineberg Fund for Community Engagement, launched this week after more than a year in the works, will allow the faculty of law at Mcgill University to offer a living stipend to thirdand fourth-year students who participate in its Legal Clinic Program. The program gives students academic credit for time served lending legal information and support for free legal clinics and organizations that help everyone from welfare recipients, the elderly, street kids and refugees to victims of violence and slum landlords.
Sixty to 80 Mcgill law students participate every year in the program, providing much-needed resources the organizations could not normally afford. Many other law students cannot take part, especially in the summer, because they need a paying job to fund their studies and living expenses – a situation that will change now with the Davies fund.
“It’s a four win-win situation (the community organizations, the students, Mcgill, and the law firm),” said Davies lawyer Robert S. Vineberg, who along with partner Hillel W. Rosen, Michael Vineberg and Richard Cherney (firm co-managing partner) helped orchestrate the special fund campaign. As well as providing direct support to people often in desperate need of legal assistance, “it’s helping students to acquire skills that they otherwise would not acquire, dealing with problems, dealing with crises, providing solutions, and to understand the benefits of community service.”