Date: 20040422
Docket: A-116-03
Citation: 2004 FCA 164
CORAM : DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
VEUVE CLICQUOT PONSARDIN,
MAISON FONDÉE EN 1772
Appellant
and
LES BOUTIQUES CLIQUOT INC. LTÉE
and
MADEMOISELLE CHARMANTE INC.
and
3017320 CANADA INC.
Respondents
Hearing held at Montréal, Quebec, on April 21 and 22, 2004.
Judgment from the bench at Montréal, Quebec, on April 22, 2004.
REASONS FOR JUDGMENT OF THE COURT: NOËL J.A.
Date: 20040422
Docket: A-116-03
Citation: 2004 FCA 164
CORAM : DESJARDINS J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
VEUVE CLICQUOT PONSARDIN,
MAISON FONDÉE EN 1772
Appellant
and
LES BOUTIQUES CLIQUOT INC. LTÉE
and
MADEMOISELLE CHARMANTE INC.
and
3017320 CANADA INC.
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on April 22, 2004)
NOËL J.A.
[1] This is an appeal from a decision by Tremblay-Lamer J. dated January 30, 2003 ([2003] F.C.A. No. 148, 2003 FCTD 103) that the use by the respondents of their registered marks did not infringe the appellant's right arising from its own marks, and did not create unfair competition or confusion with the appellant's marks.
[2] In support of its appeal the appellant raised several errors of fact and law, chiefly the misapplication by the trial judge of the rule established by this Court's judgment in Pink Panther Beauty Corp. v. United Artists Corp., [1998] 3 F.C. 534.
[3] The appellant also objected that the judge placed too much emphasis on its business plans, and in particular the fact that it did not intend to extend its activities to the clothing field, in which the respondents operate.
[4] It further maintained that the judge accepted as [TRANSLATION] "the only conclusive point" (appellant's memorandum, paragraph 57) the considerable difference between the parties' sectors of activity. In the appellant's view, the trial judge thus lost sight of subsection 6(2) of the Trade-Marks Act, R.S.C. 1985, c. T-13, under which there may be a risk of confusion if the wares or services in question "are of the same general class".
[5] Despite the vigorous argument by Mr. Léger, we consider that the trial judge correctly understood the rule laid down in Pink Panther and applied it properly. Contrary to what the appellant maintained, the link sought by Linden J.A. in that case is not any link whatever, but one based on which a conclusion can be drawn that there was a risk of confusion (Pink Panther, supra, paragraphs 50 to 55).
[6] What the appellant was actually objecting to was the conclusion of fact arrived at by the trial judge, when she concluded that the appellant had not been able to establish the existence of such a link. Counsel for the appellant invited the Court to review the evidence and draw the opposite conclusion, but was not able to show that the evidence did not support the conclusion arrived at by Tremblay-Lamer J. (Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.)).
[7] Additionally, the trial judge's emphasis on the appellant's intentions and on its business plans also does not disclose any error of law. It seems clear to the Court that this emphasis was due to the appellant's evidence, trying unsuccessfully to extend the protection of its marks in view of their possible use, but unsupported by any products other than champagne.
[8] It is also untrue to say, as the appellant did, that the trial judge regarded as the [TRANSLATION] "only conclusive point" the considerable difference between the appellant's wares and those of the respondents, and their respective sectors of activity. As indicated at paragraph 76 of her reasons, she regarded this as the [TRANSLATION] "key factor", which she was entitled to do.
[9] I would add that it seems clear from reading the trial judge's reasons that she also considered there was no risk of confusion, regardless of the lack of identity of the wares and the fact that the wares were not in the same general class within the meaning of subsection 6 (2) in fine.
[10] As regards the challenge to the part of the decision which dismissed the remedy based on section 22 of the Act, it will suffice to say that the mark "Clicquot" used by the appellant is not a registered mark, and in any case, it was not established before the trial judge that the use by the respondents of their marks was likely to diminish the value associated with the appellant's marks.
[11] The appeal will be dismissed with costs.
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-116-03
STYLE OF CAUSE: VEUVE CLICQUOT PONSARDIN,
MAISON FONDÉE EN 1772
v.
LES BOUTIQUES CLICQUOT LTÉE
ET AL.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 21 and 22, 2004
REASONS FOR JUDGMENT OF THE COURT: DESJARDINS J.A.
NOËL J.A.
NADON J.A.
DELIVERED FROM THE BENCH BY: NOËL J.A.
DATE OF REASONS: April 22, 2004
APPEARANCES:
|
Jacques A. Léger
Barry Gamache
|
FOR THE APPELLANT
|
|
Brian Riordan
Alexandre Ajami
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
Jacques A. Léger
Barry Gamache
Montréal, Quebec
|
FOR THE APPELLANT
|
|
Brian Riordan
Alexandre Ajami
Montréal, Quebec
|
FOR THE RESPONDENTS
|
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