In Wenger SA v Travel Way Group International Inc (2016 FC 347), the Federal Court dismissed an application by Wenger S.A. (Wenger) alleging passing off and infringement of its Cross Logo trade-mark by a competing luggage manufacturer (TWGI).
Wenger's mark and the marks registered and used by TWGI are illustrated below:
- Wenger Mark (registered):
- TWGI Mark (registered):
- TWGI Mark (Used):
The Court rejected Wenger's application based on the evidentiary record. The Court gave no weight to Wenger's expert survey evidence, accepting TWGI's arguments which challenged the necessity of this evidence, and the fact that this evidence was based on second-hand information of witnesses unavailable for cross-examination.
The Cross Logo was based on the Swiss flag. The existence of similar third party marks based on the Swiss flag, including those of Victorinox, undermined Wenger's case. The Court remarked that Victorinox's marks in particular "interfere" in a consumer's understanding of the source of goods associated with Wenger's Cross Logo mark and that the Cross Logo, and possible goodwill attached to it, are not solely Wenger's.
Wenger has appealed this decision.
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