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You might recall some comments I made, a couple of weeks ago, on Justice Heerey’s evidentiary rulings in the passing off litigation between Cadburys and Darrell Lea. Justice Heerey limited the presentation of certain survey and expert evidence. The judge’s ruling was informed by a policy against allowing infinite expansion of evidence in a case dealing with straightforward consumer products. The judge considered that:

‘Such evidence shouldn’t be admitted because of the rules of law above, which are based on sound policy: avoiding overcomplicated, expensive trials with lots and lots of evidence and cross-examination and warring experts. The judge is clearly concerned that admitting the evidence in this case will lead to it being expected in all of these types of cases.’

My clever RA Aaron Newell has pointed me to a case that perhaps indicates that Justice Heerey had a good point here: a recent Canadian decision concerned with trade mark issues – amongst them, dilution style harm. From the sound of things, the amount of evidence was a little breathtaking – so much so that the judge commences his judgment like a Logies speech:

‘Subsequent to 14 years of preparation time by the parties for this trial, and an eight-week trial that spanned for over a year, after more than 6,000 exhibits, 200 binders, dozens of brochures and tens of actual accessory samples, such as suitcases, briefcases, knapsacks, key chains, vehicle wallets, key fobs and dinky toys, the analysis of the evidence was made possible by the kind assistance of Madame Sylvie Baillargeon and Mr. Alain Dernek, two registrars of the Federal Court. It is they, who catalogued and organized the material, assisted by two most able individuals, who worked as archivists for the respective legal counsel of both parties, Ms. Bettina Murphy and Mr. Tyson Neil. Madame Mireille Legault deserves special mention. It is she who put this judgment into printed format, ensuring that the end notes were included and cited.

In addition, it is noted that due to the fact that for closing arguments, the two parties filed four and eight binders, respectively, for a further twelve binders (six of which consisted of authorities), the parties were asked to submit within a week a summary of closing arguments, in no longer than 90 page memoranda as to what, respectively, they considered essential to their positions. This, both parties, kindly did. Emerson said the essence of all is found in simplicity.

This trademark case has at its core one question: who has a right to what, when and for what purpose?’

I don’t envy the court staff.