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Federal Court
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Cour fédérale
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PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
REASONS FOR ORDER AND ORDER
I. Background
[1] On December 6th, 2010 Premium Sports Broadcasting, (Premium) moved the Court for an interlocutory injunction in support of an action filed on November 24, 2010 against a number of Sports Bars in Ontario (7), Quebec (2) and British Columbia (2).
[2] The defendant 1682211 Ontario Inc. (The Sports Café Champion) and its controlling mind Kosta Grigoriadis operating a Sports Bar in
[3] In its November 24 action, Premium claims the defendants infringed the Copyright Act and the Radiocommunication Act by publicly showing, exhibiting or performing sports events licensed to or by Premium. The particular focus, albeit not the only ones, are sports events described as matches and events emanating from Ultimate Fighting Championship (UFC) events distributed by broadcasting undertakings to both satellite and cable pay-per-view subscribers. In particular it is asserted by Premium that UFC is the premium provider of Mixed Martial Arts (MMA) events in North America and that MMA is currently one of the fastest growing sports in
[4] In its action, Premium claimed the defendant Sports Bars are commercial establishments in Canada which could only exhibit each live UFC sports event distributed via PPV if it obtained the authority to exhibit the particular event from Canadastar as agents of Premium and Zuffa LLC (Zuffa) the owner of UFC with whom Premium entered into an argument pursuant to which Zuffa assigned to Premium its copyright to each live event.
[5] In particular, in its action against the defendant The Sports Café Champion (SCC) Premium alleges, based on the affidavit of Tim Jackson who investigated the Sports Bar on May 29th, 2010, that this business exhibited UFC 114 on May 29, 2010 to at least 35 patrons in attendance to watch the exhibition. Premium alleged this establishment was not authorized to exhibit UFC 114 or any other UFC pay-per-view events.
[6] In his affidavit in support of Premium’s interlocutory motion Rod Keary, an officer and director of Premium, stated he believed the SCC was using either an illegal or illegally-modified satellite system to gain access to the UFC 114 event. It was his belief that the SCC has exhibited other UFC pay-per-view events in the same manner, without authorisation.
[7] In his affidavit, Mr. Keary states that on June 1st, 2010 he sent a letter to the SCC informing it of the results of Mr. Jackson’s investigation and invited it to contact him in an effort to resolve the matter. He sent a follow-up letter on June 18th, 2010. Essentially that letter puts the SCC on notice that its conduct is unlawful unless authorized by Canadastar. Mr. Keary deposed that it was his belief that, unless the requested injunction is granted against the SCC, it will continue to show other UFC pay-per-view events including the upcoming UFC 124 scheduled to be broadcast on December 11, 2010 from Montreal (my emphasis) as well as any other Premium proprietary event that may be of interest to the SCC to which they are able to gain access using their illegal or unauthorized receiving equipment.
[8] In his affidavit Mr. Keary deposed to the issue of Balance of Convenience/Irreparable Harm/Damages. I summarize the substance of his affidavit on this point:
The need for an interlocutory injunction in the context of the number of UFC events, the vast number of commercial establishments and the ease of illegal access to UFC PPV events through unauthorized receiving equipment.
The fact that Premium needs to preserve the integrity of its licensing system related to the piracy of UFC PPV events and the duty owed to its customers who have expressed concerns about illegal exhibition by their competitors which, in some instances has led customers to warn Premium they will not purchase future UFC events unless Premium stops unauthorized exhibitions and protects the integrity of its licensing system. This will lead to lost sales opportunities and lost existing market share.
Unauthorized and illegal access to UFC events infringes upon and creates confusion with Premium’s Trade-marks related to the UFC trade name.
Continued ability by the defendants to intercept and decode live transmission of UFC PPV events contrary to the provisions of the Radiocommunication Act, if not enjoined, Premium has and will continue to suffer irreparable harm.
II. The hearing of the motion
[9] At the return of Premium’s motion for an interlocutory injunction, Counsel for SCC entered an appearance and filed a responding motion record with authorities. He argued Premium:
Failed to establish irreparable harm;
It delayed seeking relief;
It has failed to establish it is entitled to relief in the nature of an Anton Piller Order; and
It has not provided sufficient information concerning the undertaking for damage.
[10] SCC’s arguments must be appreciated in the following context:
It has yet to file a statement of defence to the underlying action;
It did not file a responding affidavit denying any of the allegations contained in Mr. Keary’s affidavit and in particular his allegation that SCC had unlawfully exhibited UFC events in the past and intended to do so in the future; and
Did not move the Court for the right to cross examine Mr. Keary on his affidavit.
[11] In short, the only evidence I have before me is Premium’s unchallenged evidence particularly on irreparable harm and balance of convenience. I have no evidence on the other side except unsupported submissions by Counsel for SCC. I do not accept his submission that:
Premium has delayed relief; it tried to settle the matter;
Mr. Keary’s affidavit speaks to irreparable harm and was not cross-examined;
Premium did not seek relief in the nature of an Anton Piller Order; and
Mr. Keary undertook in his affidavit to abide by any Court order on damages.
[12] For the reasons set out in Premium’s written representations, I am satisfied that the Plaintiff has raised a serious issue to be tried, has established irreparable harm and the balance of convenience favours it.
[13] The hearing of Premium’s motion was overshadowed by one fact and that is the UFC event to take place in
[14] I asked Counsel for SCC whether his client intended to show this event without authorisation. There was no answer. I encouraged the parties to resolve the matter. I was informed yesterday that discussions had been held but, the matter could not be resolved.
ORDER
THIS COURT ORDERS that:
An interlocutory injunction be and is hereby granted, until trial or further order of this Court, against 1682211 ONTARIO INC., carrying on business as THE SPORTS CAFÉ CHAMPION and KOSTA GRIGORIADISrestraining each of them, their officers, directors, employees, agents, assigns, servants, or any person acting under their instructions, or any persons having knowledge of this order or any of its terms from publicly showing, exhibiting, performing or from decoding, decrypting, or downloading via the Internet, anybroadcasts, telecasts or signal feed, regardless of the source of broadcast or signal feed, without the written authorization and consent of the plaintiff, any of the following events:
(a) All Ultimate Fighting Championship (UFC) pay-per-view (PPV) matches and events broadcast in
(b) All matches and events broadcast exclusively by Premium in
2. The issuance of this Order is premised upon the plaintiff’s undertaking to abide by any order concerning damages that the Court may make if it ultimately appears that the granting of the injunction herein has caused damage to the defendant.
“François Lemieux”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1938-10
STYLE OF CAUSE: PREMIUM SPORTS BROADCASTING INC. v.
1682211 ONTARIO INC. CARRYING ON BUSINESS AS THE SPORTS CAFÉ CHAMPION AND KOSTA GRIGORIADIS
PLACE OF HEARING:
DATE OF HEARING: December 6, 2010
APPEARANCES:
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| Kevin D. Toyne
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FOR THE DEFENDANTS (The Sports Café Champion / Kosta Grigoriadis)
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SOLICITORS OF RECORD:
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| Brauti, Thorning, Zibarras LLP
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FOR THE DEFENDANTS (The Sports Café Champion / Kosta Grigoriadis)
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