Case information

Intellectual property — Trademarks — Official marks — Infringement — Whether a public authority can be found liable for trademark infringement under section 20(1)(a) of the Trademarks Act, RSC 1985, c T 13, where it does not use a trademark but instead adopts, uses, publishes and continues to use a lawful official mark in accordance with section 9(1)(n)(iii) of that Act?

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Quality Program Services Inc. (QPS) brought an action against the Minister of Energy (Ontario), claiming damages and other relief for trademark infringement, passing off and depreciation of goodwill under the Trademarks Act. The claims related to the mark “EMPOWER ME”, registered by QPS under the Act in connection with energy awareness, conservation, and efficiency services, and Ontario’s use of the mark “emPOWERme” in connection with a website used to educate Ontario electricity ratepayers about the Ontario electricity system and energy conservation. Following commencement of the action, Ontario requested that the Registrar of Trademarks give public notice of Ontario’s adoption and use of “emPOWERme” as an official mark of the Government of Ontario under s. 9(1)(n)(iii) of the Act, and the Registrar subsequently gave such notice. In addition to other defences, Ontario argued that this status as an official mark afforded a complete defence to QPS’ claims. A judge of the Federal Court concluded that s. 9(1)(n)(iii) did not insulate Ontario from claims under the Act. Since Ontario’s mark was confusing with QPS’ registered trademark, Ontario was found to infringe and damages were awarded to QPS in the amount of $10,000.00. The Federal Court of Appeal dismissed the subsequent appeal for substantially the reasons of the Federal Court.