The Federal Court in Canada recently dealt with a relatively rare example of a party seeking an interlocutory injunction in a trademark case, inHertz System Inc. v. Herc Equipment Rentals 2016 FC 1085, and the Court made it clear that such injunctions will not be granted lightly.

The Federal Court decision made it clear that unless there was clear evidence of irreparable harm, an application for an interlocutory injunction would fail.

The case also demonstrates the reality that a key element of an interlocutory injunction application is the evidence which both parties are able to produce. In this case, the party seeking the injunction was able to establish that it had operated a construction and industrial equipment rental business in Hamilton and Mississauga, under the name HERC, since 2000. It was further able to establish that the parties, one using the name HERC and the other using the name HERTZ, had had business dealings for 15 years, including both operating businesses on the same street. Finally, the applicant for the interlocutory injunction established that in March 2014, Hertz announced plans to operate a separate equipment rental business under the name HERC Rentals.

However, the key piece of evidence which the responding party was able to provide was a letter stating that it would only be using the HERC trademark in the United States, and not in Canada. The applicant for the injunction did not appear to have any answer to this evidence, or any proof that the letter was not accurate. There was no evidence of even one lost sale or rental. In the circumstances, confusion was considered by the Court to be unlikely. There was therefore no urgency to warrant the granting of an interim injunction, and no finding that there would be irreparable harm if the injunction were not granted.