J.W. McDonald

The respondent owned the trademark 'Wingen' for its software and used it as its website domain name.

The appellant sold 'Wingen' computers in the US but not in Canada, and operated a passive website.

US customers mistakenly visited the respondent's website, allegedly overwhelming it and ruining the respondent's business.

The trial judge found trademark infringement and awarded damages.

On appeal, the Court of Appeal held that a passive website does not constitute 'use' of a trademark in association with goods in Canada under the Trade-marks Act, as it cannot effect a transfer of property.

The appeal was allowed and the action dismissed.

The plaintiff, owner of the registered trademark 'Wingen' for software, sued the defendant for trademark infringement.

The defendant used the name 'Wingen' for its computers sold in the United States and operated a passive website that Canadian customers could access.

The trial judge found trademark infringement and awarded damages.

On appeal, the Court of Appeal held that a passive website does not constitute 'use' of a trademark in association with wares in Canada under the Trade-Marks Act, as no transfer of ownership occurs through that medium.

The appeal was allowed and the action dismissed.