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Sleep Country Canada Inc. and Sears Canada Inc. 2017 FC 148

Sleep Country Canada sold mattresses and related items through more than 200 stores serviced from 17 distribution centres across Canada. It had used the trademarked slogan “WHY BUY A MATTRESS ANYWHERE ELSE” across its advertising platforms since 1994.

Sears was a chain of department stores in several countries, including Canada. The stores sold a variety of consumer products, including mattresses. In 2016 Sears began a new, marketing plan which included a new slogan “THERE IS NO REASON TO BUY A MATTRESS ANYWHERE ELSE.”

Sleep country sought an Interlocutory Injunction, claiming confusion which would lead to irreparable harm if Sears were permitted to continue using the slogan.

Sleep Country’s counsel retained us to assess whether, if infringement were later established, it was possible to calculate damages in this case. We undertook a detailed analysis of the interrelationship of the slogans, other marketing efforts and sales data and concluded that it was impossible to calculate the damages that Sleep Country would suffer (if Sears Canada were permitted to continue using its slogan), such the Sleep Country would suffer irreparable harm if Sears were permitted to continue to use the slogan.

Sears Canada retained its own damages expert who opined that damages could be calculated.

The Court agreed with our opinion, and the injunction was granted.