In August 2015 we reported on the decision of the British
Columbia Supreme Court ("BCSC") in Vancouver
Community College v Vancouver Career College (Burnaby) Inc, 2015 BCSC 1470. That decision was notable in
Canadian jurisprudence because it addressed the use of keywords in
online advertising, and whether that activity can constitute
passing-off (i.e. infringement of a common law trademark).
In particular, the BCSC concluded that purchasing a
competitor's trademark as a keyword for search engines such as
Google was not itself sufficient to constitute passing-off. In
addition, the BCSC held that when determining whether the
defendant's activity was likely to cause consumer confusion
– an essential element of passing-off – the time to
make that assessment was not when the consumer reviews the initial
results page generated by the search engine, but instead once the
consumer had reached the defendant's actual website.
