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FACT succeeded in part on passing off over ASIALICIOUS. The Court found FACT had prior goodwill, rejected the defendants’ prior-use claim, and granted a narrow injunction and nominal damages.
The Federal Court of Appeal held that the trial judge did not commit a reversible error: patients are a relevant class of consumers for the confusion analysis in this context, the surrounding circumstances (including oral communication and repackaging practices) supported a finding of likelihood of confusion between BEOVU and BYOOVIZ, passing off was established, and injunctive relief plus nominal damages ($20,000) were appropriate; the appeals and cross-appeals were dismissed.
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The Federal Court dismissed Homewood’s interlocutory injunction motion over use of GUARDIANS, finding no strong prima facie case, insufficient goodwill, and no irreparable harm.
The Federal Court granted default judgment in part, finding trademark infringement for Oxygeneo and 3-in-1 super facial, but dismissing passing off, copyright, and punitive damage claims.
The Federal Court dismissed 2K4 Inc.’s passing off application, finding no proven pre-2011 use of the Indican Pictures mark in Canada and no valid Canadian trademark right at the relevant date.
The Federal Court dismissed Wanakome Inc.’s trademark and copyright claims, finding insufficient proof of trademark ownership or attributable use, no section 7 breach, and no basis to expunge the copyright registration.
The court granted Arc'teryx an interlocutory injunction restraining adidas Canada from using TERREX for one Vancouver retail store, finding a serious issue, irreparable harm and balance of convenience in Arc'teryx's favour.
Appeal dismissed because the Federal Court’s factual findings were supported by the evidence: goodwill overlapped between the parties, an oral licence and sufficient control by Dragona Scarborough under s.50(1) caused any goodwill earned by the appellant to be deemed that of Dragona Scarborough, and respondents’ use of the mark in Mississauga constituted lawful use by the owner (competition), not actionable misrepresentation for passing off.
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The Federal Court struck the N8KED registered mark for a materially false declaration of use, but left passing off and unfair competition claims for trial.
The Federal Court found Ontario Inc. had abandoned the TRAVEL LEADERS trademark and ordered registration TMA790523 expunged, while dismissing Ontario Inc.’s counterclaims.
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