Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs successfully obtained partial default judgment for trademark infringement under the Trademarks Act.

• Court confirmed valid ownership of registered trademarks “Oxygeneo” and “3-in-1 super facial”.

• Defendant was found to have used infringing marks on her website, Facebook, and Instagram pages.

• Copyright claims were dismissed due to lack of evidence showing authorship, publication, or registration.

• Passing off and depreciation of goodwill claims failed due to insufficient proof of market recognition or consumer association.

• Plaintiffs awarded $10,000 in damages, $1,440 in costs, and pre-judgment interest from December 14, 2023.

Facts and outcome of the case

This case involves DermaSpark Products Inc. and Pollogen Ltd. as plaintiffs against Danielle Ipince, doing business as Dreamlook Beauty. Pollogen is the manufacturer of aesthetic skin treatment products and owner of related trademarks, while DermaSpark is its exclusive Canadian distributor and licensee. The plaintiffs alleged that Ipince was offering skincare services using counterfeit or unauthorized devices and misrepresenting them as genuine Pollogen products, including the Oxygeneo facial systems, on her website and social media platforms.

The plaintiffs brought a motion for default judgment after the defendant failed to file a statement of defence. They claimed multiple violations under the Trademarks Act and Copyright Act, including trademark infringement, passing off, depreciation of goodwill, and copyright infringement, and sought declaratory relief, injunctions, damages, and costs.

Trademark infringement and injunctive relief

The Court found that the defendant had used trademarks “Oxygeneo” and “3-in-1 super facial” without authorization in a manner likely to cause confusion. These uses appeared on her website, Facebook page, and Instagram account. The Court also identified close variants such as “Oxygeneo+”, “Oxygenium”, and “5-in-1 Superior Facial” as confusingly similar. As a result, the Court issued a narrow injunction preventing further use of these terms in connection with aesthetic services. The plaintiffs were awarded $10,000 in damages for the infringement and $1,440 in legal costs.

Dismissed claims: copyright, passing off, and goodwill

The copyright claims were dismissed due to lack of evidence, such as proof of authorship, registration, or first publication. Similarly, claims for passing off and depreciation of goodwill under sections 7 and 22 of the Trademarks Act failed. The Court concluded that the plaintiffs did not provide sufficient evidence of market recognition or brand reputation in Canada to support those claims.

Interest and final orders

The Court awarded pre-judgment interest from December 14, 2023—the date the plaintiffs discovered the alleged infringement—at a rate of 4.95% per annum. Post-judgment interest was granted at 5.45% per annum. The judgment also included an order for the defendant to remove or destroy all infringing materials in her control. Other claims for punitive damages and extended relief were dismissed for lack of evidence or legal basis.