Canada: Gripe Site Found To Infringe

Last Updated: July 27 2017
Article by John McKeown

A recent decision of the Federal Court relates to the operation of a gripe site directed at United Airlines, Inc.

The Facts

United Airlines, Inc. ("United Airlines") is a commercial airline operating in the United States, Canada and other countries.  It owns the word mark UNITED for use in relation to "air transportation services for passengers". It also uses a design version of it's UNITED mark (the "United Airlines Logo") and the globe design (the 'Globe Design") as shown below:

United Airlines also owns the copyright in the United Airlines Logo and the Globe Design.

Jeremy Cooperstock operates a website located at which was registered and launched in April of 1997.  The defendant owns the domain name  He chose this term as a play on the word UNITED to highlight the disconnection and disorganization he perceived in United Airlines.  The defendant continues to maintain the website as a consumer criticism website where visitors can find information on United Airlines, submit complaints about United Airlines and read complaints about United Airlines in a database of complaints.

In the summer of 2011 the defendant redesigned its website using graphics similar to the graphics of United Airlines website including a design similar to the Globe Design but covered with a frown. The defendant's design is shown below:

When changes were made to the United Airlines website, the website located at was updated shortly thereafter to mirror the United Airlines website.

United Airlines put the defendant on notice he was infringing its trademarks and copyrights. In response the defendant made minor changes and added a disclaimer and a pop up dial up box to its website indicating that it was not the website of United Airlines.

The changes were not sufficient for United Airlines and an action was initiated in the Federal Court, which proceeded to trial. The defendant represented himself at the trial. The key issues related to whether trademark and copyright infringement had occurred.

Trademark Infringement

Trademark infringement occurs when a defendant has used a trademark or a confusingly similar trademark without the consent of the trademark owner in association with goods or services.  The issue was whether the defendant was offering services in association with a confusing trademark.

The trial judge said that the definition of services in the Trademarks Act requires no monetary or commercial element relating to the delivery of services.  The definition of "services" in the Act has been broadly interpreted in previous cases. Applying the approach the judge found that the defendant was offering information and guidance to disgruntled consumers which constituted a service.

To show infringement, the plaintiff must show that the defendant has "used" its trademark in a manner contemplated by the Act.  This involves two elements:

  1. The defendant must have used or displayed the marks in the advertising or performance of this service; and
  2. The defendant must have used the marks as trademarks to identify the origin of services.

In considering whether use has been established, the defendant's intention is not determinative.  Instead the determination depends on the message given to the public.  The crucial question was whether, despite his intentions, the defendant had used the marks in issue for the purposes of indicating origin.  Here, the judge considered that visually the respective marks were very similar with some minor variations.  In addition, the placement of the marks on the respective websites was similar.  The judge concluded the marks were used or displayed in the advertising or performance of the defendant's services and this constituted "use" under the Act.

The judge then determined whether the parties' respective marks were confusing.  The inherent distinctiveness of the respective marks, the extent to which they had become known, the length of time the marks had been in use, the nature of the respective goods or services, nature of the trade and resemblance between the marks was considered.

This determination was made from the perspective of the first impression of a casual consumer somewhat in a hurry.  The judge found there was evidence of confusion and that in any event there was ample evidence to support in finding of a likelihood of confusion.  The judge observed that intention can be relevant in cases of this nature and that the defendant intended that visitors to his website identify his symbols and names with the plaintiff as its offer served no other useful purpose.

In addition, the judge found the plaintiff had established that the defendant was depreciating the value with the goodwill attached to the United Airlines trademarks contrary to section 22 of the Trademarks Act.


The plaintiff asserted that the defendant had copied its works consisting of the United Airlines Logo and the Globe Design which were protected by copyright.

The judge concluded that the plaintiff's copyright works were original and that the defendant had engaged in substantial copying since the United Airlines Logo and Globe Design with small changes were reproduced.

The defendant asserted that his actions constituted fair dealing with the purposes of parody and as a result did not infringe copyright.

The Copyright Act contains no definition of the term "parody".  The judge found that the definition of parody used by the Court of Justice for the European Union followed the ordinary meaning of this term as used by the Act.   Parody should be understood as having two basic elements: First, the evocation of an existing work while exhibiting noticeable differences and second the expression of mockery or humour.

In addition, the judge said that the parody exception does not require that the expression of mockery or humour be directed at the exact thing being parodied.  For example, it would be possible for a parody to evoke a work such as a logo while expressing mockery of the source company.

The judge concluded that the defendant's activities fell within the definition of parody as they evoked the existing works of the plaintiff while showing differences and expressed mockery and criticism of the plaintiff.

The judge then considered whether the defendant's actions constituted fair dealing for the purposes of parody.  He considered the factors approved by the Supreme Court of Canada which set out an analytical framework to determine whether a dealing is "fair".  The factors are:

  • The purpose of the dealing;
  • the character of the dealing;
  • The amount of the dealing;
  • Alternatives to the dealing;
  • The nature of the work; and
  • The effect of the dealing on the work.

The judge concluded that the questionable purpose of the dealing, the amount of the dealing and the effect of the dealing all weighed in favour of the conclusion that the dealing was not fair.

The judge found that the defendant had infringed the plaintiff's trademarks and copyrights and that the plaintiff was entitled to an injunction restraining the defendant's use of the plaintiff's marks and copyright material on terms to be settled by the court after hearing additional submissions by the parties.  The judge also awarded costs in favour of the plaintiff but nothing was said about damages.


It can be difficult for a brand owner to determine how to react to a parody or criticism site. United Airlines seems to have decided that the intent of the defendant coupled with the extent of the parody justified bringing the action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

John McKeown
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions