[34] In practice, disclosure generally falls into one of two broad categories, namely: Section 22 of the Trade-marks Act provides a special form of protection against infringement of goodwill accumulated under a registered trade-mark. Because goodwill is a quantification of the value of your trademark, the rights granted in this section provide an invaluable legal tool to monitor the conduct of opposing parties who do not directly infringe a registered trademark, but use a registered trademark in a way that can damage your reputation and affect your bottom line. For example, a lawsuit between battery manufacturers DURACELL and ENERGIZER was recently conducted on this basis. While there was no confusion as to the origin of the batteries sold by Duracell, which also bore the Energizer brand, there was a cause of action because Duracell`s use of the Energizer brand was intended to compare its products to those of Energizer and that use risked devaluing the goodwill of the brand. Thus, the fact that a trade-mark is not used as an identifier of the source of a particular product is not decisive for liability under the Trade-marks Act, other uses of another person`s mark may also be punishable. Another example where, unlike the Energizer case, no marks were affixed to someone else`s products is the Toys R Us dispute. The Company commenced an action against Herbs R Us, a cannabis retailer, alleging, among other things, goodwill amortization under section 22. Although the General Court did not consider that consumers were confused (i.e. did not believe it came from the toy retailer) as to the source of the cannabis sold by Herbs R Us, it found that the use of such a mark, which is so similar to that of Toys R Us (the mark at issue was a design mark, which mimicked many elements of the stylized text of the Toys R Us logo), would devalue the goodwill of the Toys R Us brand. The court awarded $15,000 in damages. 56 From what perspective, then, should the probability of an “erroneous conclusion” be measured? It is not that of the prudent and diligent buyer.

On the other hand, he is not the “hurried idiot” so beloved by the elements of the passing-off bar: Morning Star Co-Operative Society Ltd. v. Express Newspapers Ltd., [1979] F.S.R. 113 (Ch. D.), at p. 117. Rather, it is a mythical consumer somewhere in between, described in a 1927 Ontario decision by Meredith C.J. as “ordinary buyers in a hurry”: Klotz v. Corson (1927), 33 O.W.N. 12 (Ct.

Sup.), p. 13. See also Barsalou v. Darling (1882), 1882 CanLII 40 (SCC), 9 S.C.R. 677, at p. 693. In Delisle Foods Ltd. v. Anna Beth Holdings Ltd. (1992), 45 C.P.R. (3d) 535 (T.M.O.B.), the Registrar stated at pp. 538-39: Spanish sherry producers, French champagne houses and Parma ham producers have each won cases that prevent people from being outside the territories concerned and/or the non-use of traditional techniques using terms such as “sherry”.

“méthode champenoise” and “prosciutto di Parma”. Unregistered trademarks are also entitled to protection if certain conditions are met. This protection is a product of Canadian common law (i.e., litigation decided by the courts), which has recognized the tort of disclosure. The Sofa-Werkstatt had filed two EU trade mark applications for the word mark SOFAWORKS and had brought an infringement action against Sofaworks on the basis of those EU trade marks and an action for disclosure. Although the trademark infringement action failed, the roll-on action succeeded. The Sofa Workshop was in good faith in the United Kingdom and Sofaworks` use of the SOFAWORKS mark constituted a misrepresentation which led some of the actual consumers concerned to believe, or was likely to cause, that Sofaworks` products were products of The Sofa Workshop which had caused material damage to The Sofa Workshop`s reputation. Rihanna has brought an action against Topshop for £3.3 million in damages after Topshop sold T-shirts with a photo of herself taken during a video shoot by a freelance photographer who authorised the use of the image to Topshop. As Rihanna had not given her consent, she argued that her image on the T-shirt was a misrepresentation that she was associated with it, and encouraged the public to buy it, causing damage to her reputation and goodwill as a fashion icon. The High Court ruled in Rihanna`s favor, finding that selling the T-shirt amounted to a transmission, as it would likely lead people to buy it in the mistaken belief that she had approved or authorized it.