Thursday, October 08, 2009

Confused by Nuclear Reactor Marketers?

Are you looking to buy a new nuclear reactor, or to get an old one fixed?

Here's two choices and two trade-marks:

The Federal Court (Zinn, J.) has recently rendered a a decision that may signal both a potential breath of fresh air in terms of allowing for a much needed breakthrough in the granting of summary judgments and shows great common sense in terms of the working of trade-marks and copyright law. Justice Zinn found that summary judgment should be granted in favour of the foreign owned defendant AREVA (owner of the mark on the right) which was being sued by AECL (Atomic Energy of Canada), the owner of the mark on the left. Justice Zinn, looking at the evidence, concluded that both marks are stylized versions of the letter "A" but that it is the case that "In short, both marks always appear in concert with the corporate name or initials."

Justice Zinn noted that nuclear reactors are not bought in haste by a "moron in a hurry ", borrowing a famous trade-marks reference by Lord Denning. He even notes that:
In this industry, the fact that Homer Simpson may be confused is insufficient to find confusion.

(For further legal research purposes, this is Homer Simpson at work in a nuclear plant)

One can speculate about whether Zinn, J. was referring to Homer in his capacity as an average moron or a somewhat more sophisticated moron who works at a nuclear power generating facility, but the point is a seriously important one in terms of real world confusion and consistent with Canadian jurisprudence. Our Supreme Court has said that BARBIE'S for BBQ restaurants is not confusing to doll collectors. Either way, the point is well made and is clear. One must look at whether there is confusion or any current likelihood of confusion on the part of the buyers of the goods or services in question in Canada.

Wondering aloud and flippantly, I don't know whether there was any evidence led about certain countries wherein there may actually be morons in a hurry to acquire nuclear reactors - which is a timely and sensitive issue. But the litigation was, after all, in Canada and such references would be extraterritorial, to say the very least.

Thankfully, Justice Zinn also quickly and decisively disposed of the copyright claim.

Here's the decision - which is short, clear and can be read for enlightenment and even amusement - and even by copyright lawyers in a hurry.

For procedural wonks, this is the first important and clearly well contested summary judgment from the Federal Court in a long time. It was argued by very experienced counsel and has given rise to a very well reasoned decision. I wouldn't be surprised if there's an appeal, since even in these tough times AECL probably can afford to try. Indeed, given the weight of the previous jurisprudence, AECL may even succeed on overturning the grant of summary judgment, despite the likely outcome at trial. But this seems like a good case to test whether the road will open up for summary judgments that could ease the cost of litigation in many instances by shortening the process in apparently very clear cases.

1 comment:

  1. The "moron in a hurry" test seems to have originated with Foster J, not Lord Denning MR - see