United Airlines, Inc. v. Cooperstock, 2017 FC 616         

In this trademarks and copyright infringement action, the Court held that Dr. Jeremy Cooperstock, the owner-operator of the website www.untied.com (UNTIED.com), had infringed the trademarks and copyright owned by United Airlines, Inc. UNTIED.com is a consumer criticism website where visitors can find information on the Plaintiff, submit complaints about the Plaintiff, and read complaints about the Plaintiff dating back to 1998. Beginning in 2011, the Court found that UNTIED.com adopted, for the first time, a design similar to the design of the United Website.

UNTIED.com was updated again in 2012 to mirror the United Website design launched in 2012. On the issue of trademark infringement, the Defendant admitted that he provides services in the form of information delivery, advice on legal rights, and publication of complaints through UNTIED.com. However, the Defendant argued that these did not constitute “services” under the Trade-marks Act because there was no commerce involved. The Court noted that there is no explicit requirement in the legislation of a monetary or commercial element to services. The Court found that the Defendant offered “services” through UNTIED.com by providing information and guidance to disgruntled flyers.

The Court also found that the Defendant’s use of the marks was confusing, notwithstanding the Defendant’s arguments that the use of disclaimers and distinguishing additions to the marks obviated any danger of confusion. In addition, the Court found passing off of the Plaintiffs’ marks and depreciation of goodwill. The Court also found that the copyright infringement claim had been made out in this case. The Court ultimately concluded that the current version of UNTIED.com did not fall within the fair dealing for the purpose of parody exception to copyright infringement. While UNTIED.com fell within the definition of parody, the Court found that the Defendant’s real purpose or motive in appropriating the copyrighted works was to defame or punish the Plaintiff, not to engage in parody. Furthermore, the Court questioned whether the parody exception may successfully be invoked when there is confusion, as was the case here. The Court also found that amount of the dealing, and effect of the dealing all weighed in favour of the conclusion that this dealing was not fair.

Finally, the Court concluded that the Defendant had not made out the defence of estoppel or acquiescence. The Court noted that the passage of time alone does not justify such a remedy, and that is all the Defendant had put forward to ground his claim.