Court File No.

T-519-12

FEDERAL COURT BETWEEN:

CANADA POST CORPORATION Plaintiff - and -

GEOLYTICA INC. c.o.b. GEOCODER.CA and ERVIN RUCI Defendants

AMENDED STATEMENT OF CLAIM

TO THE DEFENDANTS: A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are required to prepare a statement of defence in Form 171B prescribed by the Federal Courts Rules, serve it on the Plaintiff’s solicitor or, where the Plaintiff does not have a solicitor, serve it on the Plaintiff, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS after this statement of claim is served on you, if you are served in Canada. If you are served in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period of serving and filing your statement of defence is sixty days. Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office. IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against you in your absence and without further notice to you. 1

Dated:

Issued by: Address of local office: Thomas D’Arcy McGee Building 90 Sparks Street, Main Floor Ottawa, Ontario K1A 0H9

TO:

Geolytica Inc. 1435, Prince of Wales Suite 601 Ottawa, ON K2C 1N5 Ervin Ruci 532 Golden Sedge Way Ottawa, ON K1T 0G5

AND TO:

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CLAIM

1.

The Plaintiff claims: a) a Declaration that: i) Canada Post is the owner of copyright in the CPC Database as further defined herein; ii) the Defendants has have infringed Canada Post’s copyright in the CPC Database by producing and reproducing, without the consent of the Plaintiff, the CPC Database and substantial parts thereof in the course of the development, update, distribution and sale of the Defendant’s’ dataset products, including the Defendant’s’ Canadian Postal Code Geocoded Dataset ( the “CPCG Dataset”) contrary to section 27(1) of the Copyright Act, R.S.C. 1985, c.C-42 as amended (the “Copyright Act”); and iii) the Defendants Database by: (a) selling or renting out; (b) distributing to such an extent as to affect Canada Post prejudicially as owner of the copyright; (c) by way of trade, distributing, exposing, offering for sale and exhibiting in public; (d) possessing for the purposes of the activities described in sub-paragraphs (a) to (c) copies of the CPC Database and substantial parts thereof, including the CPCG Dataset which the Defendants knew or should have known infringed has have infringed Canada Post’s copyright in the CPC

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the Plaintiff’s exclusive copyright, contrary to Section 27(2) of the Copyright Act; iv) Canada Post has adopted and used Canadian Official Mark POSTAL CODE (916,507) and Canadian Official Mark CODE POSTALE (916,506) (the “Official Postal Code Marks”); v) the Defendants have, contrary to sections 9 and 11 of the Trade-marks Act, adopted and used in connection with a business, as a trade-mark or otherwise, the Official Postal Code Marks; vi) the Defendants have directed public attention to their wares, services and business in such a way as to cause or likely to cause confusion in Canada between the Defendants’ wares, services and business and the wares, services and business of Canada Post, contrary to section 7(b) of the Trade-marks Act; vii) the Defendants have passed off their wares and services as and for those of Canada Post contrary to section 7(c) of the Trade-marks Act; b) an interim, interlocutory and permanent injunction to restrain the Defendant Geolytica Inc., and its directors, officers, employees, servants, agents, licensees, related or affiliated companies, or any other person under their direct or indirect control, and the Defendant Ervin Ruci from, directly or indirectly: i) producing, reproducing, distributing, downloading, uploading, exposing or offering for sale or rental, exhibiting in public, or authorizing or causing the production, reproduction, distribution, download, upload, exposition, offering for sale or rental or exhibition in public of the CPC Database or any substantial part thereof; ii) producing, reproducing, distributing, downloading, uploading, exposing or offering for sale or rental, exhibiting in public, or authorizing or causing the 4

production, reproduction, distribution, download, upload, exposition, offering for sale or rental or exhibition in public of the Defendant’s’ CPCG Dataset as defined herein and any other dataset reproducing in whole or in substantial part the CPC Database alone or as part of a broader database; iii) otherwise infringing the Plaintiff’s rights in the CPC Database, contrary to section 27(1) and 27(2) of the Copyright Act; iv) adopting without the consent of the Plaintiff, in connection with a business, as a trade-mark or otherwise, the Official Postal Code Marks or any other mark consisting of or so nearly resembling as to be likely to be mistaken for the Official Postal Code Marks; v) directing public attention to their wares, services and business in such a way as to cause or likely to cause confusion in Canada between the Defendants’ wares, services and business and the wares, services and business of Canada Post; vi) passing off the Defendants’ wares and services as and for those of Canada Post; c) an Order directing the Defendants to delete permanently under oath all unauthorised copies of the CPCG Dataset, the CPC Database and substantial parts thereof in the possession, power or control of the Defendants and to deliver up to the Plaintiff or destroy under oath, all unauthorized physical copies whether in print or on electronic media of the CPC Database in the possession, power or control of the Defendants and which may offend the injunction sought herein; d) damages for injury to the Plaintiff and an accounting of profits or statutory damages as the Plaintiff may elect under the Copyright Act.

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d1) damages for injury to the Plaintiff or an accounting of profits made by the Defendants as the Plaintiff may elect under the Trade-marks Act; e) pre- and post-judgment interest; f) the Plaintiff’s costs of this Action plus all applicable taxes; and g) such further and other relief as this Honourable Court may deem just. The Parties 2. The Plaintiff Canada Post Corporation (“Canada Post”) is a Crown corporation created by the Canada Post Corporation Act, R.S.C. 1985, c. C-10 (the “CPC ACT”), and having a principle place of business at 2701 Riverside Drive, Ottawa, ON K1A 0B1. Canada Post is Canada’s primary postal operator and a provider of logistics and communication goods and services. 3. The Defendant Geolytica Inc. (“Geolytica”) is a corporation incorporated under the laws of Canada and having a registered office at 1435 Prince of Wales, Suite 601, Ottawa, ON K2C 1N5. 4. The Defendant Geolytica operates a commercial website at www.geocoder.ca where it offers geographic information systems (GIS) data products and services to the public. 4A. The Defendant Ervin Ruci (“Mr. Ruci”) is an individual residing at 532 Golden Sedge Way, Ottawa, Ontario, K1T 0G5. On or about 2005 Mr. Ruci without knowledge or consent of the Plaintiff appropriated the CPC Database and made unauthorised reproductions of the CPC Database, in whole or in substantial part. Mr. Ruci registered the domain name www.geocoder.ca on July 2, 2005, developed the GIS software employed at www.geocoder.ca and operated that website offering geographic information (GIS) data products and services to the public prior to the incorporation of the Defendant Geolytica on November 15, 2007 and to the present.

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4B.

Mr. Ruci is also the registrant of other websites (the “Ruci Websites”), including FoodPages.ca, FoodHouse.com, AussieSalon.com, Yelpus.com, DineHere.us,

FoodPages.us and SalonPages.com, which access and employ the GIS data products and services offered at www.geocoder.ca to generate revenue. Full knowledge of the number and identity of all such websites registered by Mr. Ruci is not known to the Plaintiff but is known to the Defendants. The Plaintiff’s Rights 5. Canada Post is the owner of the copyright in an original compilation of geographic, operational and postal data (hereinafter the “CPC Database”). The CPC Database is an original work within the meaning of the Copyright Act. As the owner of the copyright in the CPC Database, Canada Post enjoys the sole right to produce and reproduce the compilation, or any parts thereof. 6. Canada Post has adopted and used the Official Postal Code Marks. Public notice of Canada Post’s adoption and use of the Official Postal Code Marks was given on May 18, 2005 in the Trade-marks Journal. Canada Post was formed in 1981 and is a successor to the Post Office Department of Her Majesty in Right of Canada (“Post Office Department”). It is responsible for maintaining a postal system for businesses and individuals in Canada ensuring the collection, delivery and transmission of letters, parcels and publications across the country, including to remote and rural regions. In accordance with Canada Post’s constituting legislation, the government supervises Canada Post’s performance of these activities and exercises significant control over it. However, Aas a non-appropriation Crown Corporation, Canada Post does not rely on government funding to operate. The sales of goods and services to the public are the principal source of revenues of the corporation. Canada Post develops and offers delivery, logistics and communication services intended to serve the needs of businesses and individuals. As part of its product offering, Canada Post licenses to businesses and other organisations the right to reproduce and use databases compiled and maintained by Canada Post, including the CPC Database.

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7.

The Post Office Department commenced compiling the CPC Database in 1971 as a tool to increase the efficiency of the mail delivery system within Canada. The CPC Database comprises a selection of geographic, operational and postal information translated in a series of alphanumeric codes or Postal Codes (the “Postal Codes”), each of which relate the information to corresponding municipal addresses based on data collected by Canada Post. Each Postal Code provides information about municipal addresses such as the major geographic area, the city or town, the location within local geographic boundaries defined by Canada Post, the delivery mode, the urban or rural area designation and the street, selected and arranged in an original way to facilitate the efficient delivery of mail.

8.

The integrity of the postal information contained in the CPC Database is a primary concern of Canada Post, which ensures that the data contained in the CPC Database is both accurate and current. This is necessary to ensure the efficient delivery of mail avoiding errors in the automated sorting due to incorrect or invalid addresses. Businesses and organizations authorized by Canada Post to use the CPC Database are also contractually bound only to use, distribute or otherwise make available data from the CPC Database that is accurate and current.

9.

Since 1971, the CPC Database has been updated at regular intervals to reflect changing circumstances. This has resulted in successive iterations of the CPC Database with each building on the previous one. The selection and arrangement of data into the CPC Database requires skill and judgment and has been carried out by designated employees within Canada Post’s organisation and that of its predecessor in title prior to 1981.

10.

From 1971 to the creation of Canada Post in 1981, each iteration of the CPC Database was authored by employees of the Post Office Department under the direction and control of Her Majesty and the copyright in the CPC Database belonged to Her Majesty.

11.

Her Majesty’s copyright to the CPC Database was transferred to Canada Post upon its creation by the coming into force of the CPC Act in 1981. As the successor to the Post Office Department, Canada Post was transferred by law certain property, rights and assets of the Post Office Department, including the copyright to past iterations of the CPC 8

Database, to be used, disposed of or enforced by Canada Post. Canada Post pleads and relies on section 63 of the CPC Act. 12. Since the creation of Canada Post in 1981, each iteration of the CPC Database was authored by employees of Canada Post in the course and scope of their employment. Canada Post is the owner in the copyright in the iterations of the CPC Database from 1971 to the present. Canada Post pleads and relies on sections 12 and 13 of the Copyright Act. 13. Each new iteration of the CPC Database was first published in Canada, which is a member of the Berne Convention and a WTO member. 14. Since its inception, the CPC Database has been continuously updated and maintained. At present, there are approximately 890,000 Postal Codes in the CPC Database. 15. The CPC Database bears copyright notices indicating that it is protected by copyright and that the Plaintiff is the owner. 15A. Through extensive use and promotion of the Official Postal Code Marks, the marks have acquired exceptional reputation and goodwill and have become well known by the public in Canada in association with Canada Post’s products including Canada Post’s Postal Code Address Data Product. The Defendant’s’ Actions 16. The Defendant Geolytica operates a commercial website at www.geocoder.ca where it offers geographic information systems (GIS) data products and related online services. The Defendant Mr. Ruci operated this website from the date he registered the domain name on or about July 2, 2005 to the incorporation of the Defendant Geolytica on November 15, 2007 and to the present.

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17.

Sometime prior to June 2011, unknown to Canada Post and without its consent, the Defendants appropriated the CPC Database and made unauthorised reproductions of the Plaintiff’s database, in whole or in substantial part, in the course of developing, updating, distributing and selling datasets which the Defendants has offered for sale and as complementary downloads to the public (the “Defendant’s’ Unlicensed Datasets”).

18.

The Defendant’s’ Unlicensed Datasets include a GIS dataset product offered under the name Canadian Postal Code Geocoded Dataset (the “CPCG Dataset”) which is advertised to contain “891,896 unique postal codes” and which effectively reproduces the Canada Post CPC Database in whole or in substantial part. Through the Defendant’s’ website, customers may download the CPGC Dataset for a fee. The Defendants purport to grant the purchaser an unrestricted license to use the CPGC Dataset. The Defendants further purports on its the www.geolytica website to restrict any redistribution or resale of any data downloaded from the Defendant’s’ www.geolytica website thereby appropriating the CPC Database and treating it as proprietary to the Defendants.

19.

The Defendants also continue to expose by way of trade the infringing database by providing online services allowing the user to consult the Defendant’s’ Unlicensed Dataset to obtain Postal Codes corresponding to specific municipal addresses or positional coordinates.

19A.

The Defendant Mr. Ruci distributes, exposes, offers for sale or rental, and distributes to such an extent as to affect Canada Post prejudicially the Defendants’ Unlicensed Datasets to the Ruci Websites which allow users to consult the Defendants’ Unlicensed Datasets to obtain Postal Codes corresponding to specific municipal addresses or positional coordinates.

20.

The Defendants, without consent, has have produced, reproduced, distributed, exposed, exhibited in public, offered for sale or rental, and has have authorized or caused the production, reproduction, distribution, exposition, exhibition in public, offering for sale or rental the Plaintiff’s CPC Database and substantial parts thereof.

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20A.

The Defendants’ marketing of their products and their use of the Official Postal Code Marks in association with their unlicensed datasets, including the Canadian Postal Code Geocoded Dataset wares, services and business is likely to lead to the inference that there is some association or business connection between the Defendants and the Plaintiff. This use by the Defendants of the Canadian Postal Code Geocoded Dataset is likely to cause confusion in the marketplace between the wares, services and business of the Defendants and the wares, services and business of Canada Post.

20B.

The Defendants’ use of “Canadian Postal Codes Geocoded Dataset” without consent, constitutes adoption and use in connection with a business, as a trade-mark or otherwise of the Plaintiff’s Official Postal Code Marks or marks consisting of or so nearly resembling as to be likely to be mistaken for the Plaintiff’s Official Postal Code Marks.

21.

By reason of the acts of the Defendants as set out herein, the Defendants has have: a) infringed the Plaintiff’s rights in the CPC Database, contrary to section 27(1) and 27(2) of the Copyright Act.; b) directed public attention to their wares, services and business in such a way as to cause to be likely to cause confusion in Canada between the Defendants’ wares, services and business and the wares, services and business of the Plaintiff contrary to section 7(b) of the Trade-marks Act; c) passed off their wares and services as and for those of the Plaintiff, contrary to section 7(c) of the Trade-marks Act; and d) adopted in connection with a business, as a trade-mark a mark consisting of, or so nearly resembling as to be mistaken for the Plaintiff’s Official Postal Code Marks, contrary to section 9(1)(n)(iii) and 11 of the Trade-marks Act.

22.

Canada Post provided the Defendants with express notice of Canada Post’s rights, with the demand that the Defendants cease its their activities forthwith. Notwithstanding these 11

demands, the Defendants has have failed to cease its their activities and continue and threaten to continue with its their wrongful activities. 23. Further infringing activities are unknown to Canada Post but are within the knowledge of the Defendants. The Plaintiff has no control over the Defendants and the entities to which the Defendants sells the CPCG Dataset and other infringing copies of the CPC Database. The Plaintiff seeks to recover from the Defendants damages and an accounting of profits with respect to all infringements and other damaging activities. 24. By reason of the activities of the Defendants set out above, the Defendants has have made and will continue to make profits and Canada Post has suffered and will continue to suffer a loss. The Defendants will continue its their wrongful activities as set out herein unless restrained by order of this Honourable Court. 25. 26. This action is not being proceeded with as a Simplified Action. The Plaintiff proposes that this action be tried at Ottawa, Ontario.

DATED at Ottawa, Ontario, this 9th day of March, 2012. AMENDED at Ottawa, Ontario, this day of , 2013

_______________________________________ GOWLING LAFLEUR HENDERSON LLP Barristers & Solicitors Suite 2600 – 160 Elgin Street Ottawa, Ontario KIP 1C3 Stéphane E. Caron Martha J. Savoy Kiernan A. Murphy Tel: Fax: (613) 233-1781 (613) 563-9869

Solicitors for the Plaintiff

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