Cabanons Fontaine inc. v. 9036-4316 Québec inc. (Cabanons Mirabel), 2022 QCCA 1243


Read full decision. Summary prepared by Alan Macek:

[from 2022 but only published recently] This case deals with the application of the standards for passing-off under the Trademarks Act and article 1457 of the Civil Code of Québec in the context of electronic commerce on the Internet. [see trial decision 2020 QCCS 1419] ... Once the court finds the existence of goodwill, assessing the attachment comes down to “determining” the part of the goodwill that results from the distinctive character of a mark. ... They add that the use of domain names is invisible and consumers will therefore make no connection between the appellants and these domain names. They suggest that what they are doing resembles using keywords for referencing purposes (like Google Ads), which the courts have recognized as lawful. ... First, the evidence demonstrates that the name, or is visible during the redirect. In addition, there remains the possibility that, among the consumers redirected to this website, some will stay there, given the immediate availability of similar products, and that sales will thus be lost for the respondent. Finally, it seems possible to me that the average consumer, in a hurry and having a vague memory of the trademark that prompted this initial search, will not notice that he or she has been redirected to the wrong company’s website. ... appeal dismissed


Canadian Intellectual Property