Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff Exxon Mobil Corporation is the owner of a family of MOBIL registered trademarks used for motor oil and related products, relied on in this action.

• Defendants Mobil Plus Lubricant Inc. and its sole director, Taqmeer Hummad, used MOBIL PLUS word and design marks in association with motor oil and related services, including at a Toronto premises and on the mobilplus.ca website.

• Evidence from investigators and Exxon’s Global Brand Manager showed commercialization of MOBIL PLUS products and services, including product labelling that claimed American Petroleum Institute and Dexos 1 Gen 3 certifications that did not correspond to listed certified entities.

• The court found infringement of Exxon’s rights in the MOBIL registered marks under section 20 of the Trademarks Act, depreciation of goodwill under section 22, and passing off under subsections 7(b) and 7(c), based on confusing similarity, goodwill in the MOBIL marks, and conduct amounting to directing public attention and substitution.

• The court held that Hummad was personally liable along with Mobil Plus Lubricant Inc., in light of his role as sole director, his filing of the MOBIL PLUS trademark applications before incorporation, and his ownership of those applications that enabled use by the corporation.

• The court granted a permanent injunction, awarded $200,000 in nominal damages and a lump sum of $75,000 in costs on a joint and several basis, and ordered 5% post-judgment interest from the date of the order.

Facts and background of the dispute
Exxon Mobil Corporation is the owner of a family of MOBIL trademarks registered for use in association with motor oil and related products, as listed in Schedule A to the order. In the underlying action, Exxon relies on these MOBIL registered marks and alleges that the Defendants’ unauthorized use of the MOBIL PLUS and MOBIL PLUS & Design marks in connection with competing products and services infringes its rights and violates the Trademarks Act. The MOBIL PLUS & Design mark includes the word MOBIL with the “I” associated with a “+” sign, an underline with a red bar embedding the word “PLUS,” and a red maple leaf. During the summer of 2024, Exxon became aware that Taqmeer Hummad, in his personal name, had filed Canadian trademark applications for the MOBIL PLUS marks for use in association with “automobile lubricants; automotive lubricants.” Investigation revealed that the Defendants were actively commercializing motor oil products and advertising and offering services under the MOBIL PLUS marks through a location at 2 Racine Road, Toronto, Ontario, and via the website www.mobilplus.ca. The evidence also indicated that activities and products incorporating the MOBIL PLUS marks included eight locations around the world, and that the Defendants were actively seeking franchisees. Product labelling on the Defendants’ goods stated that they were certified by the American Petroleum Institute and by General Motors (through “Dexos 1 Gen 3”), but searches did not show Mobil Plus on the list of entities certified by the American Petroleum Institute or on the list of entities benefiting from Dexos certification. On August 22, 2024, Exxon sent a cease-and-desist letter requesting that the Defendants permanently cease commercializing product bearing the MOBIL PLUS marks. On September 18 and 20, 2024, the Defendants indicated that they would not cease their activities.

Procedural history and evidence before the court
On January 10, 2025, Exxon served the Defendants with a Statement of Claim in this action and, at the same time, a motion for an interlocutory injunction pursuant to Rule 373 of the Federal Courts Rules. On February 4, 2025, the court granted an interlocutory injunction on the Defendants’ consent, with costs on that motion deferred to allow the parties to attempt to settle both the quantum of costs and the entire action. On March 11, 2025, an investigator hired by Exxon visited the Defendants’ premises and observed that signage at the premises still prominently displayed the MOBIL PLUS & Design mark. On March 12, 2025, Exxon wrote to the Defendants asserting that they were in contempt of the interlocutory injunction and demanding that they cure their contempt immediately. On March 17, 2025, the Defendants advised that steps were being taken and that the situation would be rectified soon, but did not provide a specific date or confirmation that the signage had been removed. At Exxon’s request, an investigator again visited the premises on May 29, 2025, and noted that the signage featuring the MOBIL PLUS & Design mark had been removed. From late January to early April 2025, Exxon attempted to engage in settlement discussions with the Defendants, but the Defendants stopped responding. On April 7, 2025, Exxon warned that if a Statement of Defence was not filed by April 28, 2025, it would move for default judgment. No Statement of Defence was filed. In support of the default judgment motion, Exxon filed affidavits from three investigators who visited the Defendants’ premises and reviewed information on mobilplus.ca, an affidavit from Laura Bustard, Exxon’s Global Brand Manager, addressing the history of Exxon and its commercialization of MOBIL-branded engine oil, Exxon’s rights and extensive use of the MOBIL registered marks, and the Defendants’ activities, as well as two affidavits from paralegal Jason Vallée Buchanan containing corporate records, trademark application details for the MOBIL PLUS marks, registrations for the MOBIL registered marks, screenshots from mobilplus.ca, social media information, results of searches relating to engine oil certifications, street view images of MOBIL and ESSO gas stations, correspondence between the parties, and information relating to Exxon’s costs submissions.

Key legal issues on infringement, goodwill, and passing off
The court applied Rule 210 of the Federal Courts Rules, which permits a plaintiff to bring an ex parte motion for judgment where a defendant is in default of filing a Statement of Defence. The court noted that it must be satisfied that the Statement of Claim was served and that the defence deadline passed without a defence being filed, and that the evidence enables the court to find, on a balance of probabilities, that the plaintiff has established its claim. The court found that the Defendants had been personally served in Canada with the Statement of Claim on January 10, 2025, and that no Statement of Defence had been filed within the time prescribed by Rule 204(a), concluding that the Defendants were in default. On the merits, Exxon sought declarations that the Defendants infringed specific MOBIL registrations contrary to section 19 of the Trademarks Act and the full list of MOBIL registered marks contrary to section 20, that they depreciated the value of goodwill associated with the MOBIL registered marks contrary to section 22, and that they engaged in passing off contrary to subsections 7(b) and 7(c). The court reviewed section 19, which grants the owner of a registered trademark the exclusive right to use the mark throughout Canada in respect of the registered goods and services, and section 20, which addresses infringement by use of a confusing trademark or trade name. The court observed that the Defendants’ MOBIL PLUS & Design mark does not identically incorporate Exxon’s MOBIL word marks because the “I” has a “+” sign associated with it and the mark is underlined with a red bar embedding the word “PLUS” and a red maple leaf. The court accepted Exxon’s position that the marks are confusingly similar, that the subsection 6(5) confusion factors support a likelihood of confusion, and that actual instances of confusion and objections by the Trademarks Office to the MOBIL PLUS applications based on the MOBIL registrations support this conclusion. The court held that a declaration under section 20 should issue, but did not agree to grant a declaration under section 19. For depreciation of goodwill, the court applied the four elements identified by the Supreme Court of Canada in Veuve Clicquot, requiring use of the registered mark by another, existence of goodwill, a linkage between the marks, and a likely effect of depreciating that goodwill. The court found that the Defendants used a confusingly similar mark to Exxon’s registered marks for the same goods, that the MOBIL registered marks had been extensively used and promoted and were sufficiently well known to have goodwill attached to them, that Exxon lost control over its marks when the Defendants used the MOBIL PLUS & Design mark on products over which Exxon had no control, and that use of the MOBIL PLUS & Design mark on motor oil that was falsely certified as to quality and compatibility, and not offered by Exxon, was likely to depreciate the value of the goodwill associated with the MOBIL registered marks. Addressing subsection 7(b), the court set out the three required components for passing off—goodwill, deception due to misrepresentation, and actual or potential damage—and the additional requirement in statutory passing off that the plaintiff possess a valid and enforceable trademark at the time the defendant first directed public attention to its own goods or services. The court found that Exxon had established goodwill in its MOBIL registered marks and that the Defendants intentionally “piggybacked” off this reputation and goodwill to the detriment of Exxon. The evidence showed that the Defendants misrepresented to the Canadian marketplace that they were authorized by Exxon through use of the MOBIL PLUS & Design mark in association with motor oil. The court held that this misrepresentation created a likelihood of confusion as to the source of the products, with the Defendants’ products being in direct competition, sold side-by-side on the Defendants’ premises at competing price points, and taking profit away from Exxon. For subsection 7(c), the court referred to the requirement that there be substitution of one trader’s goods as and for those ordered or requested. The evidence indicated that the Defendants were selling motor oil bearing the MOBIL PLUS & Design mark side-by-side with Exxon’s product. When an investigator visited the premises to buy motor oil, he received the Defendants’ product on one occasion and Exxon’s product on another. Based on this evidence and the fact that both products were carried, the court considered it reasonable to conclude that passing off by substitution had occurred.

Personal liability of the director and scope of injunctive relief
The court then considered Exxon’s request that Taqmeer Hummad be found personally liable along with Mobil Plus Lubricant Inc. Relying on the principles summarized in Mentmore, the court noted that personal liability of a director or officer can arise where the individual’s conduct amounts to a deliberate, wilful, and knowing pursuit of a course of conduct likely to constitute infringement or reflects indifference to the risk of infringement, and where the individual’s behaviour is such that the acts complained of can be characterized as those of the individual. The court highlighted that Hummad is the sole director of Mobil Plus and the named owner of the MOBIL PLUS trademark applications, which were filed before the incorporation of the corporate defendant. The court agreed with Exxon that it was reasonable to assume that commercial activities, including sale of engine oil associated with the MOBIL PLUS marks, were started by Hummad in his personal name. It also noted that, because Hummad is the owner of the MOBIL PLUS and MOBIL PLUS & Design trademark applications, all uses of these trademarks by Mobil Plus must be under a licence granted by him. The court held that these activities were sufficient to establish personal liability and to award damages and costs against Hummad and Mobil Plus on a joint and several basis. Regarding injunctive relief, the interlocutory injunction already prohibited the Defendants from passing off their goods and services as those of Exxon and from using the MOBIL registered marks or confusing marks, including the MOBIL PLUS marks, in association with the goods and services covered by the registrations. That order remained in effect at the time of the default judgment motion. The court agreed that a permanent injunction should follow under similar terms pursuant to subsection 53.2(1) of the Trademarks Act. The final order permanently enjoined and restrained the Defendants and those under their authority or control from using the MOBIL registered marks and any other trade indicia incorporating them, including the MOBIL PLUS word mark and MOBIL PLUS & Design, in association with goods and services covered by the MOBIL registrations; from selling, distributing or advertising such goods or services in association with any confusing trademark or trade name, including MOBIL PLUS marks and the trade name Mobil Plus; from manufacturing, importing, exporting or attempting to export goods covered by the MOBIL registrations in association with confusing marks; from using the MOBIL registered marks or any trademark in a manner likely to depreciate goodwill; from directing public attention in a way that causes or is likely to cause confusion; from passing off their goods and services as and for those of Exxon; and from dealing in the Mobil Plus products and services listed in Schedule B in association with the MOBIL registered marks or any confusing trademarks, including MOBIL PLUS and MOBIL PLUS & Design.

Damages, costs, and overall outcome of the case
Exxon requested $200,000 in nominal damages and justified this amount through three related approaches. First, it analogized the Defendants’ activities to those of a counterfeiter and relied on the damages framework summarized in Louis Vuitton Malletier SA v Torf and Ragdoll, citing Oakley, which allocates standard amounts based on the nature of the defendant’s operations. The Plaintiff proposed using the manufacturer and distributor range and adjusted the original $24,000 figure for inflation using the Bank of Canada inflation rate to reach a base number of $40,000. Relying on at least five instances of infringement (including two noted by its investigator and three through Facebook Marketplace), Exxon submitted that this approach supported $200,000 in damages. Second, Exxon estimated damages on a per inventory turnover basis, again using the $40,000 base and estimating that a business turns over its inventory at least five times per year, which also led to $200,000. Third, Exxon pointed to evidence on the Defendants’ website stating that they had sold 40,000 products in Canada as of December 2024, noted that the Defendants sold their product for between $30 and $48 per container, and conservatively estimated a $5 profit per infringing product. Multiplying the estimated profit per unit by the 40,000 products sold, Exxon again arrived at an estimate of at least $200,000. The court observed that the counterfeit model was not a direct parallel because the Defendants’ products were not true counterfeit products as described in that model, but considered that the convergence of these three approaches supported a $200,000 award and found the requested damage amount appropriate in the circumstances. On costs, Exxon requested a lump sum award equal to 50% of its legal fees, asserting that this amounted to $109,638.27 (50% of $211,235.59) plus $4,020.47 in disbursements, and sought recovery for both the default judgment motion and the interlocutory injunction motion. The court acknowledged that lump sum costs awards are frequently granted in intellectual property cases and cited authority indicating that awards ranging from 25% to 50% of actual legal fees reasonably incurred are well established in cases involving sophisticated commercial parties. However, the court expressed concern with the quantum requested. Taking into account that Exxon had offered to settle the interlocutory injunction motion costs for $50,000 and had noted that the materials filed on the default judgment motion were largely the same as those filed on the interlocutory motion, the court determined that a total lump sum costs award of $75,000 was more appropriate. It treated this as representing a $25,000 award for the default judgment motion and $50,000 for the interlocutory injunction motion and noted that the total corresponded to approximately 35.5% of the fees claimed. The court also ordered that the Defendants be subject to 5% post-judgment interest from the date of the order until payment is received. In its formal order, the court declared that Mobil Plus Lubricant Inc. and Taqmeer Hummad infringed Exxon’s rights in the MOBIL registered marks contrary to section 20 of the Trademarks Act, depreciated the value of the goodwill attaching to those marks contrary to section 22, directed public attention to their goods, services, and business in a manner causing or likely to cause confusion contrary to subsection 7(b), and passed off their goods and services as and for those of Exxon contrary to subsection 7(c). The court granted a permanent injunction in detailed terms, ordered the Defendants to pay Exxon $200,000 in nominal damages and a total lump sum of $75,000 in costs, both payable jointly and severally, and imposed post-judgment interest, thereby resolving the case in favour of Exxon Mobil Corporation.