Trademarks Decisions
Appeal of Motion Striking Claims Concerning Vicarious Liability to a Landlord from Sale of Counterfeit Merchandise Allowed
Louis Vuitton Malletier S.A. v Zekria Wakilzada,
2017 ONSC 2409
The Plaintiffs appealed from the Order of a Master striking out
four paragraphs of Louis Vuitton's Statement of Claim. The
underlying action involves claims by Louis Vuitton in respect of
the advertisement, offering for sale and/or sale of counterfeit
Louis Vuitton merchandise at Dr. Flea's Flea Market in Toronto.
There are two different types of defendants: those who are vendors
who carry on business from various flea market locations; and those
that own, operate, supervise and/or control the flea markets from
which vendors offer goods for sale to the public. The Plaintiffs
submitted that the facts pleaded in the impugned paragraphs are
material facts that support what it submits is a novel extension of
the theory of vicarious liability to a landlord arising from its
tenant's sale of counterfeit merchandise.
The Court allowed the appeal and set aside the Master's order
striking out the paragraphs. The Court found that the Master erred
in principle when he decided that the impugned paragraphs should be
struck out as scandalous. The Court agreed with the Plaintiffs'
submission that the necessary elements for a cause of action
founded upon vicarious liability are unsettled, and may change
depending upon the application of this doctrine and the underlying
policy considerations to new situations. On this basis, the Court
concluded that it was an error for the Master to decide this
question at the pleadings stage.
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