In the recent decision Energizer Brands, LLC v Gilette Company, 2023 FC 804, the Federal Court ruled that Duracell’s use of Energizer’s registered trademarks ENERGIZER and ENERGIZER MAX (the “Energizer Trademarks”) in comparative advertising on its sticker labels depreciated the goodwill in Energizer’s registered trademarks.
While the Court accepted the assertion from Petline Insurance Company v Trupanion Brokers Ontario Inc., 2019 FC 1450 that “…comparative advertising helps consumers make better choices…”, it also reiterated the limits placed on comparative advertising through section 22 of the Trademarks Act which stipulates that no one can use a registered trademark of another in a way likely to depreciate the value of the goodwill attached to the mark.
Ultimately, the court found that the claims made in Duracell’s comparative advertising campaign were truthful and not misleading, but that their findings were used to the detriment of Energizer’s goodwill.
The deadline for the parties to appeal this decision is in September 2023.
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