Case Number
CA 3912/90
Date Decided
8-22-1993
Decision Type
Appellate
Document Type
Full Opinion
Abstract
Facts: the appellant bought 3,000 pairs of denim boots from the respondent for a customer of the appellant in the United States. The boots had a pocket on which a letter ‘V’ was sewn. When the boots reached the United States, they were detained in customs because the design violated a trade mark registered in the United States.
The issue in dispute was: who was responsible for ignoring the question of whether the design involved a breach of a registered trade mark?
Held: (Majority opinion — President M. Shamgar, Justice Y. Malz) Since both parties knew of the possibility that there might be a registered trade mark, and neither investigated the matter, both parties acted with a lack of good faith. Consequently, liability for the damage should be allocated between the parties.
(Minority opinion — Justice E. Goldberg) Since the appellant (the importer) asked for a change in the boots’ design because of customs problems, the respondent (the manufacturer) was entitled to rely upon the appellant knowing United States law and taking the necessary precautions to ensure it was not infringed. Therefore no lack of good faith should be imputed to the respondent, and full liability for the violation of the trade mark should rest with the appellant.
Keywords
Contracts -- Formation, Contracts -- Liability, Contracts -- Pre-Contractual Negotiation, Contracts -- Sale, Trademarks -- Right to use trademark
Recommended Citation
Shamgar, Meir; Malz, Yaakov; and Goldberg, Eliezer, "Eximin SA v. Itel Style Ferarri" (1993). Translated Opinions. 153.
https://larc.cardozo.yu.edu/iscp-opinions/153
