Roller Derby iced by Federal Court


In Bauer Nike Hockey Inc v Roller Derby Skate Corporation, the Federal Court of Canada has granted the plaintiff summary judgment to enforce a trademark infringement settlement the company had reached with the two defendants, Tour Hockey and Roller Derby.

In late 2001 Bauer sued Tour and Roller Derby for infringement of its SKATE-BLADES DESIGN trademark registration. Following the delivery of their statement of defence, Tour and Roller Derby sent a "without prejudice" settlement letter to Bauer stating their willingness to:

  • admit to infringement;

  • consent to judgment; and

  • pay fixed damages.

Bauer accepted the settlement offer and stated that it would prepare a motion record for judgment on consent. After several months of delay, Tour and Roller Derby objected to the wording of the draft and disputed that a settlement had, in fact, been reached.

In granting summary judgment, the Federal Court of Canada essentially held that a deal is a deal. Although Tour and Roller Derby argued that the "without prejudice" settlement letter was not admissible evidence as it was produced solely in the context of privileged settlement discussions, the court recognized that, where a dispute arises as to the existence of a settlement, it is necessary for the court to have access to all documents in order to resolve the conflict. In such circumstances, the settlement letter can be entered as evidence in order to determine whether the parties reached an agreement.

Tour and Roller Derby also argued that the settlement correspondence did not create an enforceable contract, but only an agreement to agree. The Federal Court disagreed and held that it was clear that the parties intended to settle the action, and the terms were clear and unambiguous.

Mark K Evans, Smart & Biggar/Fetherstonhaugh & Co, Toronto

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