Federal Court of Appeal sets hearings for pharmaceutical trademark cases

This week, hearings scheduled before the Federal Court of Appeal and the Federal Court involved matters relating to intellectual property law, international trade, tax, maritime law, and proposed class proceedings.

Federal Court of Appeal

The court set Charoen Pokphand Foods Canada Inc. v. AGC, A-165-22 on May 27, Monday. This appeal under s. 68 of the Customs Act, 1985 challenged a tariff classification decision of the Canadian International Trade Tribunal. The appellant wanted a particular food product to be classified under a specified tariff item number.

The court scheduled Samsung Bioepis Co., Ltd v. Novartis AG et al., A-26-24 on May 28, Tuesday and Biogen Inc. et al v. Novartis AG et al, A-27-24 on May 29, Wednesday. These appeals challenged a judgment that ordered a permanent injunction.

The order prohibited the appellants from using the BYOOVIZ trademark in association with pharmaceutical preparations for use in ophthalmology or for the prevention and treatment of ocular disorders and diseases and prohibited them from using any other trademark or trade name confusingly similar to the registered BEOVU trademark.

The court set His Majesty the King v. LBL Holdings Limited, A-259-23 on May 29, Wednesday. This appeal sought to set aside the Tax Court of Canada’s judgment, which allowed the respondent’s appeal from the Minister of National Revenue’s reassessment of certain monthly goods and services tax reporting periods of the respondent and vacated the reassessment.

Federal Court

The court scheduled the cases of Gray v. The Attorney General of Canada, T-702-21; Wright v. The Attorney General of Canada, T-703-21; and Philip v. AGC, T-1360-18 on May 27, Monday.

The plaintiffs in these proposed class proceedings moved for orders under rr. 3, 4, 334.11, and 358–371 of the Federal Courts Rules, SOR/98-106, to designate Acheson Sweeney Foley Sahota LLP as class counsel and to prohibit the commencement of any other proposed class proceeding in relation to the same allegations without the court’s leave.

In June 2021, in Philip v. Canada (Attorney General), 2021 FC 560, the Federal Court issued an order, which ruled that the three suits should proceed with Acheson Sweeney Foley Sahota as class counsel and prohibited the commencement of other proposed class proceedings concerning the same allegations except with leave of the court.

The court found it reasonable to assume that identifying a single class counsel and removing any potential confusion caused by other potential proceedings would benefit the parties, would promote judicial economy, and would help ensure that a single forum would resolve the disputes. This would also assist in reducing costs, avoiding multiple and overlapping proceedings, and preventing inconsistent decisions throughout the litigation process, the court said.

The court set Brink's Global Services Korea Ltd et al. v. Binex Line Corp et al., T-122-21 on May 27, Monday. This admiralty matter arose from damage to a shipment of silver ingots on a container yard to container yard basis from Busan, Korea to Prince Rupert, B.C. under a bill of lading issued in Seoul, Korea.

The defendant moved to stay the action before the Federal Court of Canada so that the issues could be litigated in Korea. When the case management judge dismissed this motion, the defendant appealed.

In November 2022, in Brink’s Global Services Korea Ltd. v. Woowon Sea & Air Co. Ltd., 2022 FC 1512, the Federal Court dismissed the appeal. However, the court set aside the case management judge’s costs order and ordered the defendant to pay lump sum costs of $11,500.

The court saw no palpable or overriding errors and refused to interfere with the case management judge’s decision in terms of the legal principles stated or the factual, evidentiary, and mixed factual and legal findings made.