Quebec court makes child’s play of game producer’s claims


In Thibault v Importations Géocan Inc (Case 500-05-054166-994, published May 2004), the Quebec Superior Court has rejected the plaintiff’s claims that the defendant had infringed its trademark rights in the title and packaging of its educational game for young children.

Bernard Thibault created a game, Tableau de Motivation (Motivation Chart), which aims to help young children accomplish tasks and reinforce certain types of behaviour. The game consists of a four-week calendar on a large board and includes stickers showing pictures, short sentences and symbols. Importations Géocan Inc marketed a similar game under the name Tableau de Motivation pour Aider les Enfants à se Discipliner (Motivation Chart to Help Children Discipline Themselves). Thibault asked the Quebec Superior Court to issue a permanent injunction against Géocan to prevent it from further infringing his trademark rights and copyrights in the game. Thibault also claimed damages of C$100,000.

The court rejected Thibault’s claims under the Trademarks Act. The court held that the title was descriptive and thus did not distinguish the game. Accordingly, no infringement occurred. Further, it found that Géocan’s packaging was a plastic envelope with a label folded in two, while Thibault’s packaging consisted of a small case. The court concluded that the packaging of the two games was too dissimilar to make a finding of infringement. The court also dismissed similar claims under the common law tort of passing off.

Turning to the copyright claims, the court held that Thibault’s game was a copyrighted work under the Copyright Act as (i) the game’s text, drawings and graphics were original, and (ii) the first two versions of the game were registered with the Intellectual Property Office, with Thibault named as the author. However, the game’s title is not a protected work per se, as it is not original or distinctive, but rather merely descriptive. The court also rejected Thibault's claims that Géocan’s game infringed his copyright because it includes many of his ideas. The court stated that copyright law protects the expression of an idea rather than the idea itself.

Brigitte Vézina, Léger Robic Richard, Montreal

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