Injunction – Software – Licence to Use
Barry Bresner and Kate Menear for Yamaha

Global brought an application for an injunction requiring Yamaha to deliver up all copies of certain product cataloguing software in Yamaha's possession or the possession of Yamaha's dealers, and delete any copies of the software on Yamaha employees' computers. Global had supplied such software to Yamaha for 10 years but Yamaha terminated the relationship effective March 31, 2008 when it introduced a new electronic cataloguing system. Global argued that on termination of the agreement, the licence it had provided to Yamaha for use of the software had also terminated and, as such, Yamaha was obliged to cease using and to return the copies of the software.

Following the test for an injunction set out by the Supreme Court of Canada in RJR MacDonald, while the court expressed some doubt that there was a serious case to be tried, given that there was nothing in the agreement between Global and Yamaha requiring Yamaha to return copies of the software on termination of the relationship, it found that Global would not suffer irreparable harm if the injunction were not granted in any event. Global had argued that irreparable harm was inherent in Yamaha's alleged infringement of its copyright; however, the Statement of Claim framed the action primarily as one for unpaid licence fees rather than a copyright claim. The court also found that the protections that had been put in place to protect Global's intellectual property rights on distribution of the software to Yamaha's dealers would continue to protect it until the conclusion of the action, especially since there was no allegation of actual misuse of the software by any party.