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Atomic Energy of Canada Limited v. Areva NP Canada Ltd. (2009) 78 C.P.R. (4th) 113 (F.C.T.D.)

Fasken
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Atomic Energy of Canada Limited v. Areva NP Canada Ltd. (2009) 78 C.P.R. (4th) 113 (F.C.T.D.)On September 30, 2009, Mr. Justice Zinn of the Federal Court of Canada issued a summary judgment dismissing a trade-mark infringement action by Atomic Energy of Canada ("AECL") against AREVA NP Canada Ltd. and its parent Société des Participations du Commissariat à L'Énergie Atomique (collectively "AREVA"). In the trade-mark infringement action commenced in August 2006, AECL had alleged that AREVA's adoption of an A Design infringed its rights in a Flying A Design mark used since the late 1960s. It also alleged passing-off, depreciation of goodwill and copyright infringement arising from the use of the A Design. Mr. Justice Zinn granted AREVA's summary judgment motion and entirely dismissed the claim brought by AECL seeking damages for trade-mark infringement, passing-off and copyright infringement. Of particular significance is the finding of the Court that the "hasty impression" test is not appropriate to the nuclear business because the relevant consumers take judicious inquiry of the wares and services to be purchased. AECL and AREVA sell and service different types of reactors and market these in association with different trade-marks. The reactors themselves are also based on very different technologies. Mr. Justice Zinn also dismissed the notion that confusion outside of the procurement process would be relevant, stating that in the nuclear industry, "the fact that Homer Simpson may be confused is insufficient to find confusion." The Homer Simpson reference is particularly apt since he is a character depicted as having below average intelligence but nevertheless working in a nuclear facility. May Cheng, Robert Cosman and Leanne Shaughnessy of Fasken Martineau were counsel to AREVA in these proceedings.

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