Canadian bookstore chain Indigo has received a temporary court injunction ordering internet service providers to block a website that the company says causes the brand “irreparable harm,” while also infringing on its copyright and trademark.  

Justice Janet Fuhrer ordered the temporary injunction for a 14-day period in an interim ruling issued late on Sept. 17, compelling Canadian internet providers to block the website during that time. The parties will return to court after that period.

Indigo’s lawyers appeared in a virtual Federal Court hearing Sept. 17 to ask a judge for an injunction that would block two “Indigo Kills Kids” websites.

The website incorporates or very closely imitates Indigo’s own visual branding and design, while accusing the company of supporting the Israeli military—and by dint of association, its Gaza war—following the Oct. 7 Hamas attacks in Israel that left 1,200 Israelis dead. More than 40,000 casualties have been listed by the Hamas-run Gaza health ministry including a reportedly high number of children.  

The website and related social media accounts are calling for a boycott of the books and music retail chain over CEO Heather Reisman’s Canadian charity, HESEG Foundation, which funds scholarships for lone soldiers from abroad to stay on in Israel following their military service.  

Lawyers for Indigo from Dipchand LLP, including May Cheng, argued that each day the website is up, there is irreparable damage being done to Indigo’s public image, which Cheng noted cannot be easily measured in potential lost customers.  

Cheng told the judge that the website content clearly infringes Indigo’s copyright.   

“The most obvious [example is] where the design artwork of ‘Indigo Kids’ has been spliced to insert the word ‘kills,’” Cheng told the court in the videoconference hearing.  

In her ruling issued late Sept. 17, Judge Fuhrer wrote that Indigo had shown the “IKK” website amounted to irreparable harm, “with clear, convincing evidence that this is a harm which is non-compensable by a monetary award.

“I am persuaded that [Indigo] has shown a serious issue, if not a prima facie case, of copyright infringement in respect of the !INDIGOKIDS Work and depreciation of the goodwill attaching to the INDIGO Marks, particularly !NDIGOKIDS and !ndigokids Design,” wrote Judge Fuhrer, noting that “the IKK Image is a substantial copy” of the Indigo Kids branding.

“I agree with the Plaintiff [Indigo] that the apparent purpose of the [website and social media properties] is to damage the Plaintiff’s business and reputation, including tarnishing the INDIGO Marks and depreciating the value of the attendant goodwill,” the ruling read in part.

“In other words, the [unnamed] Defendants intentionally have attempted to attract the Plaintiff’s consumers to their own website for notoriety and in a manner likely to tarnish the goodwill attached to the INDIGO Marks.”

The temporary injunction is not a limit on speech, the judge’s decision stated.

“In itself, it is not an order that engages freedom of expression values or interferes with the principle of net-neutrality.”

The judge ordered defendants to take down both the websites and its associated social media properties.

A spokesperson for Indigo declined an interview, writing on Sept. 17 that the company would not comment further while the court case proceeded.  

“Indigo has filed a Statement of Claim in Federal Court against the operator of a website and related social media accounts regarding their blatant misuse and infringement of Indigo trademarks and copyright, including !ndigo and !ndigoKids,” the company wrote in a brief statement to The CJN.

Three John Does are listed as defendants, corresponding to three websites using “Indigo Kills Kids” or “Indigo Kills” via .ca and .com web domain registries. (Cheng told the court Indigo is effectively seeking to have the two websites blocked.)

The names of those who created the website are not known, and have not come forward to claim the digital properties associated with the boycott and protest campaign.  

However, Indigo lawyer Cheng said that as of Sept. 16, the website had been updated to reflect new demonstrations planned across the country against Indigo.  

“This morning we filed with the court evidence that the notice of motion and the statement of claim have been posted on the website this morning,” she told the court.  

“This gives you sufficient grounds to believe that the owner or operator of the website who has yet to be identified for sure… has obviously encouraged attendance on this motion by posting both the notice of motion and the statement of claim on the [allegedly] infringing website.”  

The virtual court hearing was attended by several dozen people, if not more.

According to the “Indigo Kills” website, Sept. 25 will be a national day of action at more than 40 Indigo locations across Canada, allowing site visitors to sign up to organize local demonstrations via a contact form, along with actions like writing to the Canada Revenue Agency (CRA) about ending HESEG’s charitable status and information about independent Canadian bookshops for readers to support instead of Indigo. 

A petition on the website provides a script for consumer letters to Indigo, pledging a boycott until demands are met including Indigo dropping its lawsuit against the website, and for Reisman to drop charges against the remaining seven of 11 demonstrators who were arrested and charged in what Toronto police allege was a hate-motivated mischief incident last year, when red paint was splashed and fake posters with Reisman’s image were pasted on the outside of Indigo’s flagship store at the Bay and Bloor intersection of downtown Toronto.  

The petition letter also demands “Heather Reisman and [husband] Gerald Schwartz stop funding and remove themselves” as directors of HESEG “and/or sell their shares” in Indigo, while urging Canada Revenue Agency to hold the couple to account, along with, the petition says, “all directors of Canadian charities that fund the Israeli Defense Force (IDF) and illegal settlements in the West Bank.” 

The CRA letter writing campaign encourages formal complaints against the Gerald Schwartz and Heather Reisman Foundation, which in turn funds the HESEG Foundation.  

“HESEG assists non-Israelis joining that country’s military even though CRA rules preclude assisting foreign militaries,” the petition reads in part, going on to claim that the couple, who also founded HESEG, have through their foundation “provided over $43 million to HESEG over the last five years.” According to a recent Access to Information and Privacy request, the campaign web page said, “the Schwartz and Reisman Foundation provided about $185 million to HESEG over the years.” 

The CJN could not independently verify these numbers before press time.  

While the defendants behind the website are not identified, Indigo’s court motion is asking the court to compel Canadian internet service providers to block the websites.  

Cheng and the judge referred to the telecommunications companies as third-party respondents throughout the hearing.  

Lawyers for Indigo submitted affidavits that some telecom companies, such as Bell, had taken no position on whether the court should order the websites to be blocked. A representative of Telus who was present at the court hearing said the company took no position on the court’s decision regarding an order to block the site.  The judge’s order later affirmed that the major Canadian internet service providers including Telus, Rogers, Videotron and Bell, all either consented to the court-ordered website domain blocking, or did not oppose, or took no position on whether the court ordered telecoms to block the websites.

While no defendants were named nor represented in court, two other lawyers were present to represent parties with an interest in the case.  

Tamir Israel, a lawyer representing Charlotte Kates of Vancouver’s Samidoun Collective, appeared on Kates’ behalf, requesting the anti-Israel activist be allowed to sign on as a party with an interest in the matter.  

Kates was arrested and investigated for hate speech by Vancouver Police, who announced the arrest May 1, after video circulated of her April 26 speech at a protest.  

The video, in which a woman describes the Hamas-led terror attacks as “the beautiful, brave and heroic resistance of the Palestinian people,” has been viewed at least several hundred thousand times. The woman can also be seen in the video leading a chant of “Long Live Oct. 7” before the crowd. Police investigators confirmed the speaker as Charlotte Kates of Vancouver.  

Tamir Israel, representing Kates for an unknown interest in the case, said he had been retained at a late hour and that he needed more time to determine the basis for such legal standing, but maintained that Kates had a “direct interest.”  

The lawyer declined to confirm whether this meant Kates was one of the people behind the website.  

When asked to clarify by Indigo’s lawyers if Kates was in fact a defendant, Tamir Israel said he would need more time to determine that.  

“To frame… my client, as a Doe, requires a little bit more analysis,” he said.  

“We need more time to get a full understanding of the scope of [Kates’] role and how that relates to the claims,” Israel told the court.  

A digital-rights and privacy advocate, Tamir Israel is a former staff lawyer at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa who has published studies on facial recognition technology. He could not be reached by The CJN for comment by press time.  

Another lawyer, Stephen Ellis, appeared for Palestine Legal Centre to request intervenor status over his constituency’s interest in the matter.

The judge deferred a decision on the intervenor status application during the hearing, along with the question of Israel’s representation of Kates’ as-yet undefined interest in the matter, but addressed those in her ruling.

“I further find that an interim domain blocking order is necessary and proportional to limit the harm to [Indigo], as well as the potential risk to untargeted websites, until the merits of the motion for interlocutory relief can be heard, while providing Charlotte Kates and the possible intervener an opportunity to establish their status and participate,” wrote Justice Fuhrer.

The case is being heard in Federal Court in Ottawa.

Groups endorsing the boycott listed on the website include Jews Say No to Genocide (JSNTG), who held an early press conference outside the Toronto federal courthouse, on Queen Street, before the mid-morning virtual hearing on Sept. 17.  

Gur Tsabar, a spokesperson for the coalition of Jewish groups and supporters that formed after Oct. 7 to protest Israel, called controversy over Indigo “a bitter irony” after he said Reisman and her company had stoked “escalations against the Palestine solidarity movement back in November of last year” over the vandalized store windows and fake posters bearing Reisman’s image.  

In May, charges were dropped for four of the “Indigo 11” demonstrators charged in the mischief investigation from November 2023.

“This massive corporation is literally suing a grassroots campaign in order to hide uncontested facts about their company,” said Tsabar. “It’s at the centre of controversy because Indigo and its CEO do not want you to know that Indigo kills kids.” 

“They… don’t want you to know that it is our legally protected, freedom in Canada to boycott businesses and institutions that are complicit in Injustice against Palestine and to call others to boycott them,” he said.  

“And that if you make factual statements, it is in no way shape or form defamatory. They don’t want you to know that the boycott divestment and sanctions movement works, and it terrifies genocide supporters… and they most certainly don’t want you to know that the scale of kids killed in Gaza over the past 11 months, is staggering.” 

Tsabar responded to the judge’s interim ruling to block the website in a press release dated Sept. 18.

“Despite this gross attempt at silencing criticism, Palestine solidarity groups have vowed to continue their boycott and public education campaign against Indigo, condemning the company’s financial ties to Israel’s military through CEO Heather Reisman’s leadership in the HESEG Foundation, which, through Canadian taxpayer subsidization, supports Israeli military ‘lone soldiers.'”

Corey Balsam of Independent Jewish Voices (IJV), a member group of the coalition that supports boycott and sanctions against Israel, said on Sept. 17 that he had been part of protests against Indigo for years over its support for HESEG Foundation via Reisman and Schwartz, beginning in 2007.  

Balsam indicated the recent CRA charitable status revocation of the Ne’eman Foundation in August, whose projects included support for lone soldiers, might help with the revocation of charitable status for HESEG and the foundation run by Schwartz and Reisman.  

“The CRA was crystal clear,” said Balsam via telephone at the press conference. “Lone soldiers projects are not considered legitimate charitable activities, because they amount to supporting a foreign military, the IDF. It should only be a matter of time before the CRA shuts down” the organizations’ charitable status, he said.  

Both Tsabar and Balsam confirmed via email to The CJN that while they and their organizations are not the ones behind the website, they generally support the boycott campaign, and they confirmed their members will likely participate in the Sept. 25 protest actions, though not necessarily as lead organizers.  

“IJV has not been involved with the organizers and has not officially endorsed it at the national level,” wrote Balsam. “That said, I suspect that IJV members and some of our two dozen chapters across the country will be involved in local level actions for September 25.” 

Protesters say Toronto Police Service’s (TPS) handling of the 11 people charged in the previous mischief case over the vandalized store amounted to criminalizing and vilifying protesters, with surprise arrests early in the morning, in Nov. 2023, which they say were designed to intimidate those demonstrating in support of the Palestinian cause. 

Speaking at the press conference, Dalia Awad, a former organizer with Palestinian Youth Movement who is part of the legal support committee within the Palestinian solidarity movement, said protesters have been the subject of scrutiny by police.  

“We have heard from people who have been followed, harassed, stopped… who have had police cars parked outside their homes… their homes have been raided and they’ve had articles of clothing seized,” said Awad.  

“For months now we have seen insidious and layered approaches of the state and police…[to] suppress all forms of Palestine protests… we see this attempt for an injunction as an extension of the state’s tactics.” 

Awad replied to an inquiry from The CJN, saying she is not behind the websites Indigo has filed in court to block online in Canada. 

Lawyers for Indigo confirmed that they will return to court after the 14-day period.