No basis that plaintiff’s decisions about presence of senior legal counsel were unreasonable

Intellectual Property - Trademarks - Infringement

Plaintiff retailer owned “PC” trademarks in relation to goods and services including food, kitchenware and operation of reward incentive program. Defendant began using short form “PC” for its “Pampered Chef” trademarks and its “PC dollars” reward incentive program. Plaintiff’s action against defendant for trademark infringement was dismissed; defendant’s counterclaim to impeach PC word mark was dismissed. Costs submissions received. Defendant awarded costs of $500,000 plus disbursements of $203,487.11. This was appropriate case for lump sum award based on percentage of defendant’s fees, which practice tended to involve awards ranging between 25 per cent and 50 per cent of actual legal fees. Defendant was successful on all counts in defending action but it was not successful in asserting its counterclaim challenging validity of plaintiff’s PC word mark and this failure was factor to be taken into account. Action was critically important to both parties, who approached introduction of evidence at trial very cooperatively. Matters involved some level of complexity, but not approaching levels seen in cases where cost awards at high end of range were made. Award would be based on 25 per cent of actual legal fees reasonably incurred. There was no basis for conclusion that plaintiff’s decisions about presence of senior legal counsel were unreasonable, especially as there was no visibility into cost of plaintiff’s legal fees. Efficiency of matter being brought to trial made it less appropriate to engage in microscopic analysis of how legal resources were employed. Defendant’s disbursements for expert reports were reasonable.

Loblaws Inc. v. Columbia Insurance Company (2019), 2019 CarswellNat 6302, 2019 FC 1434, Richard F. Southcott J. (F.C.); additional reasons (2019), 2019 CarswellNat 3477, 2019 CarswellNat 4793, 2019 FC 961, 2019 CF 961, Richard F. Southcott J. (F.C.).

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