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`Exhibit P
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`FEDERAL COURT
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`Court File No. T—161-05
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`BETWEEN:
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`FOAM CREATIONS INC.
`an
`HOLEY SOLES HOLDINGS LTD.
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`909”“ ’ Regglqfi
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`Gr'efififili
`EA” CARR
`‘Lgem .5. gm???”
`4’1”;
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`fl ~’
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`STATEMENT OF DEFENCE
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`This Statement ofDefence is in reply to the Statement ofClaim (1 '
`“Statement of Claim”).
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`Defendant
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`2.
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`3.
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`4.
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`The Defendant demes the all
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`19, 20
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`strict proof thereof.
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`5.
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`6.
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`which is extra-provincially registered in British Columbia. The Defendant has aregistered
`office of PO. Box 10424, Pacific Centre, 1300 777 Dunsrnuir Street, Vancouver, British
`Columbia, Canada, V7Y 1K2.
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`Defence. As a result of the common and widespread use by such other parties, the said
`features do not distinguish, and are not capable ofdistinguishing, the Plaintiff‘s shoes som
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`those of others.
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`to this Statement of
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`10.
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`hereto sell or have sold
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`“A” hereto, and the use
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`than by the get—up of the shoes.
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`11.
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`12.
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`In further reply to paragraph 7 ofthe Statement of Claim, the Defendant denies that any of
`the features identified in the Statement ofClaim as the Foam’s Designs are original or artistic
`worlcs orthat Copyright subsists in any of said features. The Defendant also denies the
`remaining allegations in paragraph '7 ofthe Statement of Claim and puts the Plaintiff to the
`strict proof thereof.
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`In further reply to paragraph 10 ofthe Statement of Claim, the Defendant denies that any
`copyright subsists in the “Foam’s Initial Shoe” or any of the Plaintiff’s shoes, the features
`identified in the Statement of Claim as the Foam’s Designs, any moulds allegedly used to
`make such shoes, or any portion of any of the foregoing. The Defendant denies that the
`Plaintiffhas any exclusive right ofreproduction as alleged in the last sentence ofparagraph
`10 of the Statement of Claim. The Defendant has no knovirledge of any alleged written
`agreement between the Plaintiffand L’Artigiani Stampi di Battistion Ettore e C. S.n.C., but
`denies that any such agreement could or did validly transfer to the Plaintiff any right, title
`or interest in or to “Foam’s Initial Shoe” or any of the Plaintiffs shoes, the features
`identified in the Statement of Claim as the Foarn’s Designs, any moulds allegedly used to
`make such shoes, or any portion of any ofthe foregoing, and puts the Plaintiff to the strict
`proof thereof.
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`13.
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`Further, or in the altematiye, in the extent that copyright subsists in any of the features
`identified in the Statement of Claim as the Foarn’s Designs or any ofthe Plaintiff’s shoes,
`which is not admitted but denied, the Plaintiff‘s shoes have been reproduced in a quantity
`of more than fifty and consequently the Defendant cannot have infringed any such
`copyright(s). The Defendant pleads and relies on Section 64 of the Copyright Act. The
`Defendant also pleads and relies on Section 64.1 of the CopyrightAct.
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`14.
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`In further reply to paragraphs 17 and 18 ofthe Statement of Claim, the Defendant states that
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`Anne Rosenberg was involved with the incorporation ofthe Defendant, and that prior to the
`incorporation ofthe Defendant Ms. Rosenberg purchased foam sho es from Finproj ect for her
`sale and distribution. The Defendant also states that it purchased foam shoes from Finproj ect
`from time to time following the Defendant’s incorporation for the Defendant’s sale and
`distribution.
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`15.
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`In further reply to paragraph 19 of the Statement of Claim, the Defendant denies that it has
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`failed to pay for any shoes purchased from Finproject. The Defendant delivered cheques to
`Finproject for full and complete payment of the Defendant’s account with Finproj ect on or
`about June 25, 2004.
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`16.
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`The Defendant states that it was an explicit or implied term of the purchase by it and Ms.
`Rosenberg of shoes from Finnproj ect that the Defendant and Ms. Rosenberg were entitled
`to advertise, offer for sale, sell and distribute such shoes, and that the Plaintiffand Finproject
`have thus exhausted all of their/its rights in all shoes purchased by the Defendant and Ms.
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`Rosenberg from Finproject and the Defendant is thus not liable for the advertisement, offer
`for sale, distribution or sale of any of said shoes.
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`17.
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`Further, the Plaintiff and Finproject have permitted its/their distributors to advertise, offer
`for sale, sell and distribute shoes purchased from the Plaintiff and Finproj ect in association
`with the distributors’ trademarks.
`It was an express or implied term in the distributors’
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`agreements with the Plaintiffand Finproject that such distributors were entitled to advertise,
`offer for sale,
`sell and distribute shoes purchased from the Plaintiff and Finproject in
`association with the distributors’trademarks. The Defendant states that it was an express or
`implied term of its purchase of shoes from Finnproject that the Defendant was entitled to
`advertise, offer for sale, sell. and distribute such shoes'1n association with the Defendant’s
`trademarks, including HOLEY SOLES, and that the Plaintiff and Finproject have permitted
`such activities.
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`18.
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`19.
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`20.
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`21.
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`22.
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`In or about spring 2004, the Defendant arranged for the manufacture of foam shoes (the
`“Defendant’s New Shoes”) from a source other than the Finproject since Finproject had
`failed to deliver sufficient quantity and types ofshoes to meet the Defendant’s requirements.
`The Defendant states that there are no features of the Defendant’s New Shoes that are
`common with the Plaintiffs shoes that are not functional and/or in common use by one or
`more of the parties identified in Schedule “A” to this Statement of Defence.
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`The Defendant’s New Shoes have been marked and sold in association with the Defendant‘ s
`trademark HOLEY SOLES.
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`In finther reply to the allegations in paragraphs 20 and 21 of the Statement of Claim, the
`Defendant states that it has sold the Defendant’s New Shoes to Mountain Equipment Clo—0p
`(“MEG”) for MEC’s resale. The Defendant denies that the Defendant’s New Shoes are
`copies of any ofthe Plaintiffs shoes, that the Defendant’s New Shoes infringe any rights of
`the Plaintiff in or to the Plaintiff’s shoes or the Foam’s Designs, if such rights exist, which
`is not admitted but denied.
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`The Defendant denies the allegation in paragraph 21 of the Statement of Claim that the
`Defendant introduced strapped shoes after the Plaintiffallegedly introduced strapped shoes.
`The Defendant states that it began selling strapped shoes in Canada on or before the date that
`the Plaintiff allegedly introduced its strapped shoes in Canada.
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`In further reply to the allegations'in paragraph 22 ofthe Statement of Claim, the Defendant
`states that it has not offered for sale or sold any shoes having a solid upper (ie. without
`holes) other than shoes which were purchased from Finproject as aforesaid.
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`23.
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`In further reply to the allegations in paragraphs 23(a), 24(a) and 24(0) of the Statement of
`Claim, the Defendant states that:
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`(a)
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`'it has at no time misrepresented that the Plaintiff is the source of the Defendant‘s
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`New Shoes or that the Plaintiffhas approved, sanctioned or endorsed the Defendant’s
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`New Shoes,
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`(b)
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`it has at no time passed offits wares and business as and for those ofthe Plaintiff, or
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`directed public attention'to its wares and business in such a way as to cause, or be
`likely to cause confilsion in Canada with the wares or business of the Plaintiff;
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`(c)
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`anyfeatures common between the Plaintiffs shoes and the Defendant’s New Shoes
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`are functional and/or are in common and widespread use by those parties identified
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`in Schedule “A” hereto, and such features do not distinguish, and are not capable of
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`distinguishing, the Plaintiff’s shoes from those of others;
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`(d)
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`the Plaintiff has not established any secondary meaning with consumers in any
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`features of its shoes as required to establish rights in product get«up; and
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`(e)
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`there is no possibility of confusion arising from the sale of the Defendant‘s New
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`Shoes by reason of the foregoing and also for at least the following reasons:
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`(i)
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`the Defendant’s New Shoes are clearly and unambiguously marked with the
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`Defendant‘s trademark HOLEY SOLES, with “Vancouver BC” to indicate
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`the Defendant’s location, and with a label bearing the notation “Made in
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`China”, while the Plaintiff’s shoes are marked and sold in association with
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`the trademark CROCS and the notation “Made in Canada”; and
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`(ii)
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`the Defendant’s New Shoes differ from the Plaintiff 3 shoes because the
`Defendant’s New Shoes: (a) have a higher lift from the soles to the top ofthe
`shoes, thereby providing a larger entry area and toe box; (b) have larger
`massaging bumps on the footbed; (e) have larger and more rounded vents on
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`24.
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`25.
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`26.
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`27.
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`ihe sides of the shoes; and (d) are constructed of material which is more
`dense than the material of the Plaintiff s shoes.
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`In further reply to the allegations in paragraph 23 (b) of the Statement of Claim, the
`Defendant denies that it owed or breached any fiduciary duty to the Plaintiff. Further, the
`Defendant states that the allegation in paragraph 23 (b) of the Statement of Claim is outside
`the jurisdiction of this Court and thus does not disclose a reasonable cause of action, is
`immaterial or redundant, is scandalous, frivolous or vexatious, may prejudice or delay the
`fair trial of the action, or is otherwise an abuse of process of the Court, and the Defendant
`specifically reserves the right to later bring a motion to strike out paragraph 23(b) of the
`Statement of Claim.
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`In further reply to paragraph 24(b) of the Statement of Claim, the Defendant denies that
`copyright subsists in any of the features identified in the Statement of Claim as the Poam’s
`Designs, that the Defendant has infringed any copyright ifsuch copyright exists which is not
`admitted but denied, and that the Plaintiffhas any exclusive right to reproduce the Foam’s
`Designs in Canada.
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`The Defendant specifically denies that it has done anything contrary to the law, Section 7 of
`the Trade-marks Act or Sections 5 and 27 of the CopyrigkrAct, as alleged in paragraph 24
`of the Statement of Claim, and puts the Plaintiff to the strict proof thereof.
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`In further reply to paragraph 24 ofthe Statement of Claim, the Defendant denies that it has
`made any unlawful profits and that the Plaintiffhas suffered any damage due to any act of
`the Defendant. In the altematiye, if the Plaintiffhas suffered any damage due to an act of
`the Defendant, which is not admitted but denied, the Defendant states that the Plaintiffhas
`not mitigated its damage.
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`28.
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`In finther reply to paragraph 27 ofthe Statement of Claim, the Defendant denies that it is or
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`was required to obtain the Plaintiffs consent or authority in respect of any of its activities,
`that the Plaintiffhas any valid or enforceable trademark rights or copyright as alleged, and
`that the Defendant has carried out any infringing or unlavaul activities and puts the Plaintiff
`to the strict proof thereof.
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`29.
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`In the alternative, if the Plaintiff does have any valid and enforceable rights which the
`Defendant has infringed or violated, whichis not admitted but denied the Defendant states
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`that the Plaintiff and the Plaintiff’s alleged distibutor Crocs LLP (formerly Western Brands
`LLP) were aware ofthe Defendant’s New Shoes since at least as early as May 17, 2004 when
`certain demands were made to the Defendant on behalf of Crocs LLP (formerly Western
`Brands LLP) in respect of the Defendant’s New Shoes, and have been aware of die
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`Defendant’s intention to continue marketing and selling the Defendant’s New Shoes since
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`at least as early as June 16, 2004, and but failed to take any action against the Plaintiffuntil
`the filing of the Statement of Claim. Further, the Plaintiff did not make any request to the
`Defendant prior to the commencement of this action that the Defendant cease selling the
`Defendant’ s New Shoes. As a result ofthe Plaintiff’s unreasonable delay and failure to act,
`the Defendant was entitled to accept that by failing to act and by its delay, the Plaintiffhad
`acquiesced to the Defendant’s distribution and sale of the Defendant’s New Shoes. The
`Plaintiffis therefore estopped fiom claiming the reliefsought in the Statement ofClaim. The
`Defendant pleads lashes, acquiescence and estoppel.
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`30.
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`In further reply to the whole of the Statement of Claim, the Defendant states that it was not
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`aware at any material time of the subsistence of COpyright in any of the features identified
`as the Foam’s Designs (if such copyright(s) exist, which is denied) and had no reasonable
`ground for suspecting the subsistence of copyright therein. The Defendant states that the
`Plaintiff is not entitled to any remedy, but if it is, then the Plaintiff is not entitled to any
`remedy other than an injunctionin view ofs. 3 9 ofthe CopyrightAct, which the Defendant
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`pleads and relies on.
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