Wenger S.A. v. Travel Way Group International Inc., 2016 FC 347

Wenger brought an application seeking, inter alia, a declaration of infringement and expungement of certain of Travelway's trademarks. The Court dismissed the application.

On the question of confusion, the Court confirmed the jurisprudence and held that the level of resemblance between the two marks is similar enough to warrant further consideration. However, the Court held that consumers are not likely to know the Wenger Cross Logo as originating from one source. The Court gave no weight to the survey proffered to evidence likelihood of confusion, as it was introduced in the affidavit of a person who neither conducted the interviews nor designed the survey. Furthermore, the Court was not satisfied that mistakes made in retail advertising and anecdotal evidence were not sufficient evidence of actual confusion. Thus, the Court held that Travelway's use of the marks is not likely to confuse the consumer. Furthermore, there was no passing off and no damages. 

Finally, Travelway's marks were held to be registered and valid. The onus of proving otherwise was on Wenger and they did not meet it.