In a previous announcement, we informed you that one of our litigation lawyers, Mtre Julien Ouellet, had signed with Éditions Wilson & Lafleur, Martel, Ltd for a legal treatise on the passing off action in Canada. LJT Avocats is pleased to announce that his book is now available from the publisher.

Passing off, commonly known in French as “commercialisation trompeuse” (literally, misleading trading), is one of the most prominent forms of unfair competition. It typically involves acts of confusion in the course of business by the misleading imitation of another’s trade name or mark to deceive the public. In other words, a person markets their products, services, or business by passing them off as those of another person. The business harmed by this practice will generally want to stop it to protect its goodwill and to obtain appropriate relief by bringing a passing off action.

Mtre Ouellet’s reference work provides an in-depth examination of the passing off action in Canada, which encompasses analogous actions based on the tort of passing off (in common law, outside Quebec), the civil liability for unfair competition by confusion (in Quebec civil law), and the statutory tort of section 7(b) of the Trademarks Act (in federal law, across the country). Anchored in a rich and nuanced comparative law approach, it is filled with useful information and resources for legal practitioners faced with these challenges.

The legal treatise is divided into four parts. The first discusses the basics of the passing off action, that is to say: its three sources, the interplay between them, the action’s functions, and the kindred claims. The second deals in detail with the essential elements that must be established for the defendant to be held liable in passing off, namely: a goodwill in respect of distinctive indicia, deception of the public due to a misrepresentation, an actual or potential damage to the plaintiff and, as to the federal statutory tort, the use of a trademark within the meaning of the Act. The third covers the main defences, grouped according to the conditions of the action. Finally, the fourth focuses on the two main remedies available if the court finds the defendant liable, which are injunctions and damages. The book can be ordered from Wilson & Lafleur via their website or their phone line 1-800-363-2327, or purchased in person at the Wilson & Lafleur bookstore.