Federal Court Rules that Complaint Website Infringes Trademarks and Copyright

On June 23, 2017, the Federal Court held that the defendant, Dr Jeremy Cooperstock, had infringed United Airlines’ trademarks and copyright on his complaint website, Untied.com, which published consumer complaints against the plaintiff, United Airlines (Reasons for Judgment: 2017 FC 616; Judgment: 2017 FC 617). Untied.com closely resembled the United Airlines website and displayed modified trademarks of United Airlines.

On the issue of trademark infringement, the defendant argued that there was no infringement since he was not offering a service and there was no commerce involved. Justice Phelan concluded that “services” do not require a monetary element and should be given a broad interpretation. The Court held that the defendant’s use of confusingly similar marks constituted infringement and depreciated the goodwill attached to United Airlines’ trademarks.

On the issue of copyright infringement, the Court applied the two part fair dealing test set out in CCH Canadian v Law Society of Upper Canada, 2004 SCC 13 (CCH; E-TIPS® summary here). At the first stage, the Court held that Untied.com was for the allowable purpose of parody since it evoked existing works with some differences and expressed mockery. At the second stage, the Court analysed the six CCH factors in determining whether the dealing was “fair”, and concluded that the intent to punish United Airlines and consumer confusion, weighed in favour of ruling that the dealing was unfair.

Summary By: Michelle Noonan