Breach of agreement leads to injunction for ISNA name user
In Islamic Society of North America (ISNA Canada) v Teherany (Docket 07-CV-336270 PD2, September 13 2007), the Superior Court of Justice of Ontario has granted an interim and interlocutory injunction to the Islamic Society of North America in order to prevent defendants Shahrukh and Suraiya Teherany from using the trade names ISNA Travel Services and ESNA Travel, or any variation thereof.
1176630 Ontario Inc was initially incorporated by the Islamic Society as a travel agency which operated under the name ISNA Travel Service. The corporation was sold to the defendants in 2006.
One of the activities offered by both the Islamic Society and the defendants is the organization of pilgrimages to Saudi Arabia. As contractually agreed by the parties, the defendants were allowed to use the ISNA Travel Services trade name for an initial period of one year from the closing date; the deadline was afterward extended until July 2007. The Islamic Society has been continuously using the trade name.
Although the Islamic Society does not deny the defendant's right to organize pilgrimages to Saudi Arabia, it requested that they cease using its trade name to do so. The defendants had been using the ISNA Travel Services trade name in obtaining visas from Saudi Arabia and in dealing with the public. As these activities were in contravention with the parties' agreement, the Islamic Society filed a motion against the defendants.
The defendants, who did not dispute that they were in breach of their agreement with the Islamic Society, suggested operating under the name ESNA Travel. However, the Islamic Society argued that it was confusingly similar to its trade name.
In considering whether the interlocutory injunction should be granted, the court had to determine whether:
- there was a serious issue to be tried;
- the Islamic Society suffered irreparable harm; and
- the balance of convenience favoured the moving party.
Since the defendants did not dispute that they had breached the agreement, the court found that there was a serious issue to be tried.
Since there was a clear and non-disputed breach of the agreement concluded by the parties, the court established that there was no need for the Islamic Society to establish irreparable harm or to demonstrate that the balance of convenience lay in its favour in order to obtain an interlocutory injunction.
Catherine Daigle, Léger Robic Richard LLP, Montreal
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