'Moron in a hurry' test does not apply to nuclear industry, says court

In Atomic Energy of Canada Limited v AREVA NP Canada Ltd (2009 FC 980, September 30 2009), the Federal Court of Canada has dismissed a trademark infringement action brought by Atomic Energy of Canada Limited (AECL) against AREVA NP Canada Ltd alleging that AREVA’s adoption of an 'A' design infringed its rights in the 'flying A' mark. 

AECL has used its 'flying A' mark in Canada since the late 1960s. AECL argued that confusion could arise since both parties:

  • are direct competitors in the provision of nuclear goods and services; and
  • had submitted bids to build a new nuclear installation in Canada.
It was also admitted that AREVA has sold reactor parts and components in Canada and that it competed directly with AECL in the provision of steam generator tube cleaning services for CANDU nuclear power plants in Canada and elsewhere.

Of particular significance was the finding that the 'hasty impression' test was not appropriate in the context of the nuclear business, because the relevant consumers take judicious inquiry of the goods and services to be purchased. The court noted that AECL and AREVA sell and service different types of reactors and market these in association with other trademarks. Further, the purchase of a nuclear reactor is not a regular occurrence in Canada. AECL has not sold a nuclear reactor in Canada in the past decade and AREVA has never sold a nuclear reactor in Canada. The relevant customers are provincial governments and major power utilities, and the market for nuclear products and services is heavily regulated. Procurement decisions involve numerous individuals conducting multiple reviews and approvals over a relatively long period of time. Nuclear reactor services that go out for bid are multi-million dollar contracts. In this environment, customers are not confused with whom they are dealing. 

The court found that the factors in assessing confusion (eg, the nature of the goods, services, business and trade) are of primary, if not determinative, importance in the nuclear context. It opined that it is difficult to imagine more sophisticated consumers, and a more prudent procurement process, than exists in the nuclear power business. In this context, adopting the point of view of the “somewhat hurried” consumer, as urged by AECL, did not make sense as there was no such thing as a “hurried consumer” of nuclear products and services.

On the evidence, the court held that it was:
"beyond the realm of possibility that any utility could be confused by the resemblance of the AREVA and AECL marks into purchasing a reactor from the 'wrong' company (as indeed AECL’s witnesses and its counsel admitted) or services from the 'wrong' company."

According to the court, the lengthy and detailed procurement process involved in purchasing the goods made that simply impossible. The uncontroverted fact that the competing 'A' marks are always used in close proximity to the corporate name or initials bolstered this finding.

The court went further in holding that:

there is no evidence that has been or could be adduced at trial to change the fact that any passing confusion that may arise from the resemblance of the trademarks will always and in every case be dispelled through the procurement processes before nuclear wares or services are actually purchased.”

The court also dismissed the notion that confusion outside of the procurement process would be relevant, stating that in the nuclear industry, “the fact that Homer Simpson may be confused is insufficient to find confusion”. The Homer Simpson reference is particularly apt since he is a character depicted as having below-average intelligence, but nevertheless working in a nuclear facility.

This case sets the bar at the far end of the spectrum in holding that the nuclear procurement or purchasing environment is virtually incapable of lending itself to the “hurried consumer” analysis typically applied to determine a likelihood of confusion. It stands as a solid pronouncement on the need to consider the context of the purchasing decision in assessing confusion, finding support in Lord Denning’s decision in Newsweek Inc v British Broadcasting Corp ([1979] RCP 441), in which it was held that the test is whether the ordinary, sensible members of the public would be confused. It is not sufficient that the only confusion would be to a very small, unobservant section of society, or if the only person who would be misled was “a moron in a hurry”.

May M Cheng, Fasken Martineau DuMoulin LLP, Toronto

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