Executive Summary: Key Legal and Evidentiary Issues

• The plaintiffs successfully established ownership of registered trademarks through amended affidavits and documentary evidence.

• Evidence showed unauthorized use of registered and common law trademarks, including “OxyGeneo” and “3-in-1 super facial,” by the defendants.

• The court found infringement under sections 19 and 20 of the Trademarks Act and depreciation of goodwill under section 22(1).

• The passing off claim under subsection 7(b) succeeded, but the claim under subsection 7(c) failed due to lack of substitution evidence.

• Injunctive relief was granted despite no proof of ongoing infringement, based on risk of continued violations.

• Damages of $15,000 and partial costs of $4,000 were awarded, while punitive damages and personal liability were denied due to insufficient proof.

Facts and outcome of the case

Background and parties

This Federal Court decision involves a second motion for default judgment by the plaintiffs, Dermaspark Products Inc. and Pollogen Ltd., against the defendants Aveena Cosmetic Clinic Inc. (ACCI) and its sole director, Fatemah Fakourna. Dermaspark is the exclusive Canadian distributor and licensee of Pollogen’s cosmetic technologies, including a suite of registered and common law trademarks such as “GENEO+”, “OXYGENEO”, “OXYPOD”, and “3-in-1 super facial.” The plaintiffs allege that ACCI used these marks without permission in advertising its aesthetic services, thereby infringing their trademark rights and damaging their business.

Claims and allegations

The plaintiffs claimed trademark infringement under sections 19 and 20 of the Trademarks Act, depreciation of goodwill under section 22(1), and passing off under subsections 7(b) and (c). They also sought a permanent injunction, monetary damages of $70,000 for infringement, punitive damages of $50,000, and an order requiring the defendants to deliver up all infringing materials. The plaintiffs supported their motion with amended affidavits and trademark registration certificates, seeking to correct the evidentiary deficiencies identified in their earlier, unsuccessful motion.

Court’s evaluation of the evidence

Justice Furlanetto found that the plaintiffs had now provided sufficient documentary evidence to establish ownership of the registered trademarks. The court accepted that Pollogen owned the marks and that Dermaspark had exclusive distribution and licensing rights in Canada. Screenshots of ACCI’s website and social media posts from 2023 and 2024 showed the use of “OxyGeneo” and “3-in-1 super facial” to promote services, including references to counterfeit devices.

The court ruled that this conduct infringed the plaintiffs’ registered marks under sections 19 and 20, and also constituted depreciation of goodwill under section 22(1). The passing off claim under section 7(b) was also accepted, as the unauthorized use was likely to cause confusion in the marketplace. However, the court declined to find liability under section 7(c) due to the absence of evidence showing direct substitution of goods.

Damages, injunction, and personal liability

While the plaintiffs initially sought $70,000 in damages, the court found no reliable evidence of actual damages or proof of continuing infringement after February 2025. As a result, it awarded only $15,000 in nominal damages and denied the request for punitive damages. Costs were reduced to $4,000 from the requested $6,000 due to insufficient support for the claimed legal fees.

The court granted a permanent injunction prohibiting ACCI and any affiliated parties from using the Pollogen Marks in any form. However, the request to hold Ms. Fakourna personally liable was rejected. The court found no evidence that she had acted independently of the corporation or with deliberate intent to infringe.

Final judgment

Justice Furlanetto granted the motion for default judgment in part. ACCI was permanently enjoined from using the Pollogen Marks or any similar identifiers, ordered to deliver up or destroy infringing materials, and required to pay $15,000 in damages and $4,000 in costs. All other relief, including punitive damages and personal liability for Ms. Fakourna, was denied.