Passing off application dismissed due to applicant's failure to establish prior use of its unregistered trademark in Canada.
The applicant, a California-based film distributor, sought to assert rights in the unregistered trademark "Indican Pictures" against the respondent, a Canadian company using the mark "IndieCan Entertainment".
The applicant alleged passing off under section 7(b) of the Trademarks Act.
The Federal Court determined the relevant date for assessing passing off was 2011, when the respondent incorporated and began directing public attention to its services.
The Court dismissed the application, finding the applicant failed to demonstrate valid and enforceable trademark rights through use of its mark in Canada in association with film distribution services prior to 2011.
In the alternative, the Court found the applicant also failed to establish goodwill and damages as of the relevant date.
