BETWEEN

NOTICE OF MOTION

TAKE NOTICE THAT the Plaintiff, Toronto.com, will make a motion to the Court on Monday, August 9, 1999 at 9:30 a.m. or as soon thereafter as the motion can be heard, at 330 University Avenue, 8^th Floor, Toronto, Ontario.

The estimated time for the hearing of the motion is 2 hours.

THE MOTION IS FOR:

• 1. an interlocutory injuction to restrain the Defendants, Ritchie Sinclair and Garth Cole doing business as Friendship Enterprises, by themselves, their servants, agents, work persons, representatives or those in privity with them from:
• (i) using, displaying, advertising or authorizing others to use, display or advertise the trade-mark TORONTO2.COM
• (ii) using, displaying, advertising or authorizing others to use, display or advertise any other words, names, domain names or marks that are similar to the trade-mark TORONTO2.COM;
• (iii) using, displaying or advertising the trade-mark TORONTO2.COM, or authorizing others to use, display or advertise the trade-mark TORONT2.COM, in a manner which is likely to cause confusion with the Plaintiff’s trade-marks TORONTO.COM and TORONTO.COM ALL YOU NEED TO KNOW ABOUT T.O. & design (the "Trade-marks");
• (iv) (doing any other act likely to have the effect of depreciating the goodwill attaching to the Plaintiff’s Trade-marks;
• (v) passing off their wares, services, or business as and for the wares, services or business of the Plaintiff or otherwiase directing public attention to their wares, services or business in such a way as to cause or be likely to cause confusion between their wares, services or business and the wares, services , or business of the Plaintiff; and
• (vi) copying, publishing, framing or linking content of the Plaintiff’s web seite at www.toronto.com; and
• (vii) otherwise infringing the Plaintiff’s copyright in it’s www.toronto.com web site pages;
• 2. costs of the motion; and

• 3. any further and other order as to the Court seems just.
THE GROUNDS FOR THE MOTION ARE:
• 1. The Plaintiff operates internet web sites at which it provides city guides and directories. These web sites include toronto.com, Mississauga.com and yorkregion.com

• 2. The Plaintiff or its predecessor in title, Toronto Star CitySearch, has operated the web site now known as TORONTO.COM, and displayed a guide and directory for the city of Toronto at that web site, since December 31, 1997.

• 3. Since January 8, 1998, the domain name "Toronto.com" has been registered in the name of the Plaintiff.

• 4. Since at least as early as March 30, 1998, the Plaintiff or its predecessor in title, Toronto Star CitySearch, has operated the web site under the domain name Toronto.com at www.toronto.com. At that web site, the Plaintiff (or Toronto Star CitySearch) has made known, used, displayed and advertised the trade-marks TORONTO.COM and TORONTO.COM ALLYOU NEED TO KNOW ABOUT T.O. & design in Canada in association with an internet guide and directory for the City of Toronto. It has also sold, and continues to sell, advertising space on the site to third party advertisers.

• 5. Through its extensive use in Canada of the TORONTO.COM trade-marks, the Plaintiff has acquired substantial goodwill in the trade-mark and is entitled by virtue of the common law in Canada to the exclusive use of this trade-mark.

• 6. The Plaintiff has recently learned that the Defendants are using the trade-mark and domain name TORONTO2.COM on their web site located at www.toronto2.com.

• 7. The Plaintiff is the owner of copyright in the web pages at www.toronto.com and has the exclusive right to reproduce those web pages in any material from and to authorize any such reproduction.

• 8. Without the prior knowledge, consent, or authorization of the Plaintiff, the Defendants have reproduced and /or authorized the reproduction of portions of the Plaintiff’s web site at their own web site at www.toronto2.com.

• 9. Without the prior knowledge, consent, or authorization of the Plaintiff, the Defendants have also: (i) "framed" several web pages or portions of web pages published at www.toronto.com by the Plaintiff, and displayed them on their own web site at www.toronto2.com ; and (ii) linked their web site to some of the same web sites to which the Plaintiff has linked its web site.

• 10. As a result of the Defendants’ activities, the Plaintiff has suffered and continues to suffer serious and irreparable harm through, among other things, loss of distinctiveness of its TORONTO.COM trade-mark and loss of goodwill attaching to it, which cannot be compensated in damages. In the adsence of an interlocutory injunction, the Plaintiff will continue to suffer such irreparable harm.

• 11. The balance of convenience clearly favours the Plaintiff who has invested considerable time, money and effort in developing its "Toronto.com" internet brand name, and in building a valuable reputation and goodwill in association with the TORONTO.COM trade-mark in Canada.

• 12. Rules 373 of the Federal Court Rules, 1998, sections 2, 3, 4, 6, 7, and 53.2 of the Trade-marks Act, R.S.C. 1985, c T-13, as amended, and the copyright Act, R.S.C. 1985, c. C-42, as amended.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
• (1) the affidavit of George Jewell sworn July 30, 1999, and exhibits thereto;
• (2) the Affidavit of Jeff MacPherson sworn July 29, 1999;
• (3) the Statement of Claim issued June 24, 1999; and
• (4) such other documents as counsel may advise and this Court permits.

DEETH WILLIAMS WALL
Solicitors for the Plaintiff

TO:
THE ADMINISTRATOR
Federal Court – Trial Division
330 University Avenue, 7th Floor
Toronto, Ontario M5G 1R7

AND TO:

FRIENDSHIP ENTERPRISES