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ARTICLE · 24 JANUARY 2025

Passing Off And The Tale Of The Missing (Valid) Trademark

Gowling WLG
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In 2K4 Inc. (Indican Pictures) v Indiecan Entertainment Inc., 2025 FC 20, the Federal Court considered whether the Respondent, IndieCan Entertainment...

CanadaIntellectual Property
Katherine Beaulieu
Katherine Beaulieu
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In 2K4 Inc. (Indican Pictures) v Indiecan Entertainment Inc., 2025 FC 20, the Federal Court considered whether the Respondent, IndieCan Entertainment, was liable for passing off its film distribution services as those of the Applicant, Indican Pictures. The Applicant claimed the Respondent's use of the name and mark "IndieCan" was likely to cause confusion in Canada contrary to paragraph 7(b) of the Trademarks Act.

The Court dismissed the application for lack of evidence of a valid trademark by the Applicant. This decision provides guidance on the evidence necessary to demonstrate the existence of a valid trademark as the threshold entry point to a passing off analysis.

The Court stated the test for passing off as follows:

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