Irving Consumer Products Limited v. Cascades Canada ULC, 500-17-097042-173
Read full decision. Summary prepared by Alan Macek:
"Soft furry animals are used to sell bathroom tissue. So is the color blue. Can one furry animal on a predominately blue package be confused with two or three other white furry animals on a predominately blue package?" Royale had used kittens as a marketing tool since 1973. Cascade had filed trademarks and was likely to launch a new product featuring a cartoon style white rabbit. The Court found that the overall presentation of the defendant's packaging would not lead the average consumer to be confused. The Court also found that urgency was not sufficiently shown. The Court found it was doubtful there would be infringement, and the plaintiff not demonstrated that confusion is likely to occur. The Court concluded that any damage that the plaintiff might suffer would be largely quantifiable. "If less Royale bathroom tissue is sold and more Cascade bathroom tissue is sold a damage calculation should be possible. Moreover upon realizing that they have brought the wrong product, consumers who are attached to the kittens are likely to switch back to Royale such that there should be no permanent market loss." The motion for interlocutory injunction was dismissed.