TRADE MARKS |
Practice |
Jonathan, Boutique Pour Hommes Inc. v. Jay-Gur International Inc.
T-486-98
2003 FCT 106, Hugessen J.
30/1/03
4 pp.
Plaintiff, defendant have registered marks including "Jonathan"--Basis of defendant's motion for summary judgment in action for trade-mark infringement, passing off recent decision in Molson Canada v. Oland Breweries Ltd. (2002), 59 O.R. (3d) 607 (C.A.)--Decision applied well-established rule that use of registered trade-mark absolute defence to action in passing off--Question whether defendant using its registered trade-marks i.e. whether "substantially deviating" from registered marks or simply using "essential elements" of registered marks--Court cannot disregard state of register, confusion--Must have regard to realities and look at all circumstances of case including state of market and of register, circumstances in which defendant currently making use of marks "Jonathan G", and at fact such use very similar to use made by plaintiff of registered trade-mark "Jonathan"-- Issue can only be decided after trial, at which judge will look at evidence and decide whether defendant's use insignificant deviation from registered mark--Motion dismissed.