Officially Infringing — Court Empowers Plaintiff Against Official Mark Owner

The Federal Court’s recent decision in Quality Program Services Inc. v. Her Majesty the Queen in Right of Ontario as Represented by the Minister of Energy (2018 FC 971) adds further clarification to the impact of marks protected under s. 9(1)(n) of the Trademarks Act—an alternative to regular trademark protection available to public authorities, universities, and the Armed Forces—by finding that ownership of a published official mark is not a defence to an infringement claim. Mr. Justice Southcott held that the Province of Ontario’s adoption and use of the mark emPOWERme infringed the Plaintiff’s, Quality Program Services’ (“QPS”), registered trademark EMPOWER ME, and awarded it $10,000 in damages. In the course of analyzing the issues, the Judge offered additional comments, several in obiter, on a range of subjects including how local reputation impacts depreciation of goodwill, the definition of “use” for services, the necessity of “commercial” activities for such