Tartan Brewing Limited v. Carling Breweries (B.C.) Limited

Tartan Brewing Limited v. Carling Breweries (B.C.) Limited

On comparison of labels and cartons there was no appreciable similarity that would deceive or likely confuse purchasers; the plaintiff had not shown a proprietary secondary meaning in "Pil" and differing containers and dissimilar get-up defeated any s.7(b) claim, so appeal must be allowed and action dismissed.

Citation
[1970] SCR 323
Parties
Defendant/appellant: Tartan Brewing Limited; Plaintiff/respondent: The Carling Breweries (B.C.) Limited
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
14 November 1969
Procedural Posture
Trade Marks / Intellectual Property (s.7(b) Trade Marks Act) / Appeal to Supreme Court of Canada From Exchequer Court Judgment
Outcome
Appeal allowed; respondent's action dismissed
Legal Topics
Likelihood of Confusion, Get Up/packaging, Use of Unregistered Marks, Secondary Meaning, Section 7(b) Trade Marks Act
Source Language
English
Intellectual Property Trade Marks Unfair Competition Likelihood of Confusion Get Up/packaging Use of Unregistered Marks Secondary Meaning Section 7(b) Trade Marks Act

Case Brief

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Parties

Tartan Brewing Limited

Defendant/appellant

The Carling Breweries (B.C.) Limited

Plaintiff/respondent

Procedural Posture

Trade Marks / Intellectual Property (s.7(b) Trade Marks Act) / Appeal to Supreme Court of Canada From Exchequer Court Judgment

Legal Issues

  1. 1 Whether use of the word "Pilcan" and the get-up of the defendant's canned beer directed public attention in a manner likely to cause confusion under s.7(b)
  2. 2 Whether comparison of labels and cartons would deceive or mislead purchasers into believing the defendant's beer was the plaintiff's
  3. 3 Whether the word "Pil" had acquired a protectable secondary meaning

Ratio Decidendi

On comparison of labels and cartons there was no appreciable similarity that would deceive or likely confuse purchasers; the plaintiff had not shown a proprietary secondary meaning in "Pil" and differing containers and dissimilar get-up defeated any s.7(b) claim, so appeal must be allowed and action dismissed.

Court Disposition

Appeal allowed; respondent's action dismissed

Orders

  • Appeal allowed
  • Respondent's action dismissed