Appeal of a trade-mark decision; 2009 FCA 144; May 5, 2009

The Court of Appeal upheld a trial judge’s decision dismissing an application in a suit regarding statutory passing-off. The application below was dismissed because Pharmacommunications had not adduced any evidence of actual or potential damage. The Court of Appeal upheld this decision on the basis that, although the statute does not require actual or potential damages, the Court of Appeal and the Supreme Court have previously held elsewhere that the statute is a codification of common-law passing-off and actual or potential damages are required.

Thus, as there is no evidence of actual or potential damages, the claim for statutory passing-off cannot succeed and the appeal must be dismissed.

The full text of the decision can be found at: http://decisions.fca-caf.gc.ca/en/2009/2009fca144/2009fca144.html