Summary judgment to strike allegations. Defendant D Inc. and plaintiff E Inc. were leading battery brands in Canada. E Inc. brought action for damages from D Inc.’s use of terms “next leading competitive brand” and “bunny brand” on labels D Inc. attached to packages of its D Inc. batteries. D Inc. brought motion for summary judgment to strike allegations from E Inc.’s second amended statement of claim. Motion granted in part. D Inc.’s use of term “bunny brand” on packages of its batteries may offend ss. 22(1) of Trademarks Act and will not be struck. D Inc.’s use of “bunny brand” may offend ss. 7(a) and 7(d) of Trademarks Act and will not be struck. D Inc.’s use of term “next leading competitive brand” on packages of its batteries did not offend either ss. 22(1), 7(a) or 7(d) and will be struck. E Inc. did not have right to accounting for profits. Given ENERGIZER Bunny Trademarks, and fact that each was a famous mark, somewhat-hurried consumer seeing words “bunny brand” in relation to batteries would make both link with and connection to ENERGIZER Bunny Trademark. D Inc. used “bunny brand” to claim that its batteries were longer lasting than E Inc.’s batteries.
Energizer Brands, LLC v. The Gillette Company (2018), 2018 CarswellNat 6146, 2018 FC 1003, Henry S. Brown J. (F.C.).