Canada : Chapter 3
| Pages | 17-23 |
| DOI | 10.10520/EJC74009 |
| Published date | 01 January 2002 |
| Date | 01 January 2002 |
CHAPTER 3
CANADA
1. Direct comparative advertising
2. Indirect comparative advertising
3. Conclusion
1. Direct comparative advertising
It is possible for an injured party in this country to restrain a competitor
from using a comparison or reference to his goods, services, business1or
trade mark.2
Comparative advertising is mainly governed by the Trade Marks Act,
especially section 22 that states:
“No person shall use a trade mark3registered by another person in
a manner that is likely to have the effect of depreciating the value
of the goodwill attaching thereto.”
These requirements were applied in a case concerning a comparison of
goods, namely Clairol International Corp v Thomas Supply and
Equipment Co.4In this case the court had to determine the meaning of the
word ‘use’ in terms of section 22, and in doing so the court took note of the
definitions in the Act. The court ruled that a trade mark is used by a per-
son if it appears on the packaging of the goods or if it is affixed to the
goods in any other way. With regard to ‘use’ pertaining to services, it was
decided that a trade mark is used if it applies in any way in the supply or
advertising of these services. In addition the court found that a person
could infringe a competitor’s goodwill, even if the comparisons are in toto
true.
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1 E.g Purolater Courier Ltd v Mayne Nickles Transport Inc, (1983), 70 CPR (2d)
61 (Federal Court, Trial Division).
2 E.g. Source Perrier Societe Anonyme v Fira-Less Marketing Co, (1983), 70
CPR (2d) 61 (Federal Court, Trial Division). Burshtein 1995:13.
3 Judge Richard Posner, as quoted by Johnson 1996:906, explains that the eco-
nomic function of trade marks is to economise on consumer search costs,
because the trade marks give the assurance of uniform quality. The search
costs are reduced “because the consumer is able to quickly identify or locate
the product that is desirable”. Transaction costs are also reduced, “because
the buyers and sellers are able to accurately and effectively communicate
about the products, goods and services trades”. Johnson 1996:907.
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