In McDowell v. A Drip of Honey, 2024 FC 453, the Plaintiff, Heather Ruth McDowell, brought an ex parte motion in writing seeking default judgment against the Defendant, A Drip of Honey.

In a statement of claim filed on 7 February 2022, the Plaintiff alleged that the Defendant’s adoption, use and promotion of the trademark A DRIP OF HONEY amounted to trademark infringement and passing off and also damaged the Plaintiff’s goodwill in her various HONEY trademarks.  The Plaintiff sought an injunction restraining the Defendant from directing public attention to its goods in a way that caused or was likely to cause confusion in Canada between its goods and those of the Plaintiff. The Plaintiff also sought delivery or destruction of any and all business, advertising, and other material within the Defendant’s control that would offend the requested injunction.

The Defendant failed to serve and file a statement of defence within the time limit set out in the Federal Courts Rules.

The Court noted that the Plaintiff’s submissions in support of default judgment were deficient, as she failed to cite the correct legal tests for the alleged causes of action and failed to substantiate the remedies sought.  However, despite an initial inclination to dismiss the motion, the Court found that the Plaintiff’s evidence was sufficient to establish infringement and passing off, contrary to Sections 7(b) and 20 of the Trademarks Act and partially granted the motion for default judgment. The Court noted that there was no doubt that the Defendant was in default.

In granting the motion, Mr. Justice Zinn noted, “Even when unopposed on a motion for default judgment, the Plaintiff must put her best foot forward… I take this final opportunity to provide a word of caution to counsel on motions for default judgment: although unopposed, they are not automatic. The Plaintiff must prove her case, not merely plead it.”

This decision emphasizes the importance of meeting applicable legal tests even on unopposed motions for default judgment.

A copy of the decision is available here.