Federal Court Weighs In On Comparative Advertising Claims

A notable decision of the Federal Court of Canada in Energizer Brands, LLC v. Gillette Company, 2023 FC 804 has dealt with the use of comparative performance claim labels and stickers on product packaging. It considered whether the claims made depreciated trademark goodwill, and, as well, were deceptive, false or misleading in violation of certain unfair competition provisions of the Trademarks Act as well as of the Competition Act.

Justice Fuhrer of the Federal Court found that certain statements on Duracell's packaging using Energizer's ENERGIZER and ENERGIZER MAX trademarks were likely to depreciate Energizer's goodwill in its registered trademarks, and thus awarded Energizer an injunction against Duracell prohibiting the use of Energizer's marks, together with damages in the amount of $179,000. Other statements not using the marks, but using the "bunny brand", were not found to depreciate, owing to a lack of evidence of consumer reaction to the "bunny brand"