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21 September 2005

Confusion is a question of fact, rules Federal Court of Appeal

In Alticor Inc v Nutravite Pharmaceuticals Inc, the Federal Court of Appeal has confirmed that the determination of whether there is a likelihood of confusion between two conflicting marks is essentially a question of fact and considerable deference must be accorded to trial judges in their evaluation of confusion.

14 July 2005

Clothing manufacturer kisses goodbye to summary judgment

In Cosaco Inc v Hot Kiss Inc, the Federal Court of Canada has refused to grant a summary judgment (i) confirming the validity of the plaintiff's registered KISS trademark, and (ii) invalidating the defendant's registered HOT KISS mark. The court was reluctant to grant interlocutory relief when additional evidence was needed to establish the marks' validity.

17 May 2005

Use of Internet as source of documentary evidence questioned

In WIC TV Amalco Inc v ITV Technologies Inc, the Federal Court of Appeal has raised questions as to the appropriateness of relying on the Internet as a source of documentary evidence. The court appears to have concluded that notwithstanding the convenience of accessing the Internet live in the courtroom, courts should apply a more rigorous approach when considering the admissibility of documentary evidence from the Internet.

10 May 2005

Concept of 'reverse confusion' acknowledged in Canada

In A & W Food Services of Canada Inc v McDonald's Restaurants of Canada Limited, the Federal Court has held that although not expressly codified in the Trademarks Act, the concept of 'reverse confusion', whereby the plaintiff alleges that the defendant's use of a mark causes consumers to believe that the plaintiff's goods or services sold under a similar mark are connected to the defendant, is covered by Canadian trademark law.

17 March 2005

Supreme Court hears Lego appeal

The Supreme Court of Canada has this week heard an appeal that will undoubtedly have significant implications for the rights of unregistered trademark owners in Canada and, particularly, rights in unregistered functional trademarks. The appeal in Lego Canada Inc v Ritvik Holdings Inc will also raise issues about the constitutionality of Section 7(b) of the Trademarks Act.

07 March 2005

Water company keeps its cool in H2O dispute

In 417934 Alberta Ltd v H2O Co Beverages Ltd, the Federal Court of Canada has granted the plaintiff's application for summary judgment restraining the defendant from using H2O Co and H2O Co Water Company as its trade names in relation to the installation of water coolers. The court held that the names are confusingly similar to the plaintiff's registered trademark H2O COOL for the same services.

21 February 2005

Court gives guidance on latest trends in Tommy Hilfiger Case

In Tommy Hilfiger Canada Inc v Produits de Qualité IMD Inc, the Federal Court of Canada has issued guidance on the tests to be applied and the evidence required in respect of claims of trademark infringement, passing off and depreciation of the value of the goodwill in a trademark.

14 February 2005

Hermès bags injunction against sale of knock-offs

In Hermès Canada Inc v Henry High-Class Kelly Retail Store, the Supreme Court of British Columbia has upheld the plaintiff's request for an interlocutory injunction restraining the defendant from selling or advertising products that employ the distinctive features of the plaintiff's goods. The court held that the plaintiff's claim had met all the requirements to allow a grant of an interlocutory injunction in British Columbia.

10 February 2005

Credibility of evidence to be determined at full trial, rules court

In Henkel Canada Corporation v Conros Corporation, the Federal Court has refused the plaintiff's motion for summary judgment in a dispute over rights to the trademark LEPAGE. The court held that it could not ascertain the credibility of the defendant's expert evidence in summary judgment proceedings. This exercise, along with other determinations of fact and law, must be made at full trial.

18 January 2005

Licensee has no legal entitlement to official marks, court rules

In Canadian Rehabilitation Council for the Disabled v Rehabilitation Foundation for the Disabled, the Federal Court of Canada has addressed the issue of entitlement to official marks where both parties involved are public authorities. Specifically, the case addresses this issue in the context of a licensing arrangement between the parties.

17 December 2004

Director not personally liable for alleged corporate IP infringement

The Federal Court of Canada has struck out an action claiming that an officer/director was personally responsible for alleged trademark infringement perpetrated by two corporate defendants. The judge held that the officer/director must be aware of the infringement, or indifferent to the risk thereof, in order to be party to an action.

16 December 2004

Champagne on ice as Supreme Court hears VEUVE CLICQUOT appeal

In Veuve Clicquot Ponsardin, maison fondée en 1772 v Boutiques Cliquot Ltée, the Supreme Court of Canada has granted the plaintiff leave to appeal in its trademark infringement case against a small chain of women's clothing retail stores. The case will be an opportunity for the Supreme Court to examine in detail the principles set out in Canadian law relating to famous marks.

07 December 2004

A party's intentions can help establish confusion, court rules

In Montreal Auto Prix v 9078-7995 Quebec Inc, the Court of Appeal of Quebec has allowed an appeal against a trial judge's decision that held that MONTREAL AUTO CREDIT was not confusingly similar to MONTREAL AUTO PRIX (prix meaning 'price' in French). The appellate court found that the respondent's intentions in choosing its trademark and advertising strategy were to ride on the appellant's goodwill.

04 November 2004

Law Society lays down the law to domain name registrant

In Law Society of British Columbia v Canada Domain Name Exchange Corporation, the Supreme Court of British Columbia has issued a permanent injunction preventing the defendant from using the domain names 'lawsocietyofbc.ca' and 'lsbc.ca'. The court held that the registration and use of the domain names was an actionable misrepresentation that would result in a likelihood of confusion.

25 October 2004

Chanel polices online use of CHANEL marks

Fashion and perfume company Chanel has filed a claim in the Federal Court of Canada against a resident of Toronto who is allegedly infringing the CHANEL word mark, logo and perfume bottle design by (i) using domain names that incorporate the mark CHANEL, and (ii) displaying on her website, which advertises escort services, a perfume bottle bearing a blurred CHANEL logo.