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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.
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.
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