Summary judgment refused, as Anne of Green Gables dispute rolls on
In Sullivan Entertainment Inc v Anne of Green Gables Licensing Authority Inc, the Federal Court of Canada has refused the plaintiff's motion for summary judgment regarding the defendant's adoption, use and assignment of certain official marks. The court was reluctant to issue summary judgment without a detailed examination of whether or not the defendant is a public authority entitled to use official marks.
Anne of Green Gables Licensing Authority (AGGLA) was set up to manage the intellectual property rights in the works of Lucy Maud Montgomery who authored a series of novels about a little red-haired girl, known as 'Anne of Green Gables'. Anne's adventures took place in the Canadian province of Prince Edward Island, which has gained considerable fame as a result. The province and Montgomery's descendants claimed a number of trademark and official mark rights in the Anne character (and other references from Montgomery's novels) and transferred the rights to AGGLA. Official marks are a powerful intellectual property right recognized under Section 9 of the Canadian Trademarks Act. They are not covered by the same rules as ordinary trademarks and their only limitation is that they must be adopted and used by a public authority.
Sullivan Entertainment, a company that has produced a number of films and television programmes featuring characters from the Anne of Green Gables novels, brought an action against AGGLA. It argued that AGGLA's official marks are unenforceable because:
- AGGLA is not a public authority;
- AGGLA has neither adopted nor used the official marks; and
- the official marks could not be assigned from the province of Prince Edward Island to AGGLA.
Sullivan moved for summary judgment on the second and third claims. However, the Federal Court rejected the motion because it felt that it could not make a judgment on those claims without first analyzing whether or not AGGLA is a public authority.
Sullivan has appealed the Federal Court's refusal to grant summary judgment.
Brian W Gray, Blake Cassels & Graydon LLP, Toronto
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