A judge has ordered Duracell Canada to stop using trademarks owned by Energizer Canada. .According to Blacklock’s Reporter, this decision comes after a legal battle that lasted for eight years..“I conclude Energizer is entitled to a permanent injunction restraining Duracell from using the Energizer trademarks,” wrote Justice Janet Fuhrer of the federal court. Fuhrer awarded Energizer $179,000 in damages plus costs..Energizer disputed Duracell’s claim that they are “15% longer lasting versus Energizer” batteries..Both companies hired experts who had different opinions on which battery lasted longer..“I conclude Duracell has not made any false or misleading representations or statements,” wrote Justice Fuhrer. However, the Court said that using a rival’s trademark name in comparative advertising did breach the Trademarks Act..“The plaintiff and defendant represent the leading battery brands in Canada and are each other’s biggest competitors,” wrote Justice Fuhrer. .“Together, they supply more than two-thirds of the household consumer battery market in Canada. Duracell has the largest market share.”.Fuhrer wrote that identifying Energizer by name in claiming their batteries were not as good resulted in “likely depreciation of goodwill” in the Energizer trademark. “The evidence establishes the sticker campaign was aimed at increasing Duracell’s market share when it already was the market leader at the expense of the next leading competitor, Energizer.”.The “15% longer lasting” claim appeared without any disclaimer or qualification, said the Court. “Energizer asserts their examination of the testing data shows that the Energizer performance claim is untrue.”.“This is a case about comparative advertising,” wrote Justice Fuhrer. .“In determining a case like this, the Court often is tasked with considering whether the challenged activity depreciates goodwill and unfairly trades on a claimant’s reputation through a competitor’s false or misleading statements about the claimant or their products, or whether the activity is permissible competition that does not violate the claimant’s intellectual property rights.”.The Court noted the Trademarks Act was intended to protect owners’ right to sell goods to “the average harried consumer” in a store, “someone who does not pause to give the matter any detailed consideration or scrutiny if they pay any attention at all.”.“Consumers take only seconds to absorb the information on packaging and labels in a retail setting, 12 to 25 seconds on average,” wrote Justice Fuhrer. .“I am left applying my own common sense as a potential buyer of the goods.”
