Executive Summary: Key Legal and Evidentiary Issues

• Default judgment was sought under Rule 210 of the Federal Courts Rules after the defendant failed to file a statement of defence following substituted service.

• Trademark infringement was established under sections 19 and 20 of the Trademarks Act, with the defendant using OXYGENEO, GENEO+, and Geneo+ design marks without authorization.

• Evidence demonstrated the defendant advertised aesthetic services using the plaintiffs' trademarks on her website and social media, including depictions of a counterfeit device.

• Depreciation of goodwill was proven under section 22 of the Trademarks Act, satisfying the four-factor test from Veuve Clicquot.

• Lump-sum damages of $25,000 were awarded based on precedent, with the court declining to double damages for each plaintiff due to the distribution agreement structure.

• Costs were assessed at 30% of actual fees incurred, totalling $6,207.60.

Background of the dispute

Dermaspark Products Inc. and Pollogen Ltd. initiated legal proceedings against Amanda Ottmann, operating as Admire Beauty and MedSpa, alleging trademark infringement. Pollogen is the owner of registered trademarks including OXYGENEO, GENEO+, and Geneo+ design, while Dermaspark serves as the exclusive Canadian distributor and exclusive licensee of these marks in Canada. The plaintiffs became aware of the defendant's unauthorized use of their trademarks on or around November 20, 2024, when they discovered the defendant was advertising aesthetic services using the protected marks on her website and social media pages. Screenshots revealed the defendant was not only using the trademarks but also depicting a counterfeit device advertised as the plaintiffs' OxyGeneo device.

Procedural history and default

The plaintiffs successfully obtained an order for substituted service of the statement of claim, and the proof of service was filed in accordance with Associate Judge Molgat's order dated June 12, 2025. Despite proper service, the defendant failed to serve and file a statement of defence within the prescribed time, nor did she bring a motion to extend the time to do so. The court concluded that the defendant was in default, satisfying the first requirement for a default judgment under Rule 210.

Findings on trademark infringement

The court found that the plaintiffs established ownership of the trademarks and that Dermaspark held an exclusive licence for Canada. The defendant's conduct, specifically using or displaying the trademarks in the performance and advertising of her aesthetic services, constituted infringement under sections 19 and 20 of the Trademarks Act. The court further determined that even if the marks were not identical to the trademarks, the confusion test under section 6(5) would still render the defendant's conduct infringing under section 20(1)(a).

Depreciation of goodwill

Applying the four-factor test from Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltee, 2006 SCC 23, the court found that the defendant's use of the plaintiffs' registered trademarks in association with unauthorized aesthetic services and a counterfeit device caused depreciation of the goodwill associated with those marks. The trademarks were sufficiently well known and have goodwill associated with them, the plaintiffs lost control over their marks through the defendant's use, and the likely effect of the defendant's use of the plaintiffs' trademarks with a device and services not offered by the plaintiffs was to depreciate the value of the goodwill associated with the marks.

Assessment of damages and costs

The plaintiffs initially sought $70,000 in damages, requesting $35,000 for each plaintiff. However, the court declined to double the award, noting that the agreement between Dermaspark and Pollogen indicates that Dermaspark alone is required to defend, enforce and protect the Pollogen Marks, consistent with Justice Furlanetto's reasoning in Dermaspark Products Inc. v. Aveena Cosmetic Clinic Inc., 2025 FC 1350. Considering the cost of the counterfeit machine (approximately $22,000 as indicated in a purchasing agreement) and relevant jurisprudence including Patel v. Dermaspark Products Inc., 2025 FCA 145 from the Federal Court of Appeal, the court awarded lump-sum damages in the amount of $25,000. For costs, the plaintiffs requested $10,346.00 representing 50% of fees actually incurred, but the court exercised its discretion to award $6,207.60, representing 30% of the fees incurred.

Ruling and outcome

Associate Judge Catharine Moore granted the plaintiffs' motion for default judgment in part on January 9, 2026. The defendant was ordered to pay $25,000 in damages to the plaintiffs, and the plaintiffs were awarded costs of the motion to be paid by the defendant in the amount of $6,207.60. All other requests in the motion were dismissed.