On June 23, 2011, the Federal Court of Canada issued an order and reasons for dismissing the motion for interlocutory injunction brought by U.S. department store giant Target Corporation ("Target") against Fairweather Ltd. et al. ("Fairweather") to stop it from operating a TARGET APPAREL retail clothing store chain in Canada.
The widely anticipated ruling followed a two-day hearing in early May 2011, where Target argued that it would suffer "irreparable harm" if the Canadian TARGET APPAREL were allowed to continue to operate and expand on its 15 store chain.
Mr. Justice Mandamin of the Federal Court wrote a 25 page decision rejecting the motion for injunction and ordered Target to pay Fairweather's costs. The Court found that the expert evidence of damage to Target's "brand promise" difficult to assess and determined that this assessment would be best left to the trial judge. The Court also held that Target's practice of licensing businesses using the TARGET name in Canada undercut its argument that it is harmed by the perception that TARGET APPAREL stores are somehow linked with Target.
Justice Mandamin noted that Fairweather did not begin significant expansion with the TARGET APPAREL retail clothing stores until 2007, after the Federal Court of Appeal ruled in favour of the validity of the TARGET APPAREL trade-mark, which Target had sought to expunge for non-use commencing in 2002. Target did not announce it was going to enter the Canadian market until 2011.
The Court noted that the trial date fixed in the action will take place before Target's market entry in Canada in 2013, and that it will not be prevented or delayed from opening TARGET department stores in Canada.
Jeffrey Kaufman and May Cheng appeared as co-counsel for the defendants in successfully arguing that the motion for injunction be dismissed.