Unf(Air) Canada

Hi all,

I just came across a commercial that reminded me of a controversial Canadian IP case. The commercial was aimed at bringing attention to issues faced by Air Canada flight attendants, and it directed me to go to a website called “unfaircanada.com.”

As you may recall from Kaja’s excellent post in November, the Federal Court dealt with a similar “gripe site” in United Airlines v Cooperstock, 2017 FC 616 [Cooperstock]. In that case, the Court decided a website that intentionally mimicked the United Airlines website for parodic effect (“UNTIED.com”) infringed United’s trademark. Mr. Cooperstock had created the website for the purpose of providing a channel for consumer criticism of United (fair enough).

The Court’s approach to confusion in that case has attracted scrutiny from IP scholars. The Court cited Mr. Cooperstock’s admission that he “wanted visitors to [his website] to recognize the similarities to [United’s website]” as supporting a finding of confusion. Carys Craig neatly summarized the flaws in the Court’s reasoning in her article “Gripe Sites and Trademark User Rights: Lessons from Canada’s Cooperstock Case,” as follows:

The UNTIED marks were designed to make it abundantly clear that United was the target of the complaints collected there, and in this sense, consumers would “identify” or “associate” them with UNITED— but this kind of referential use is the opposite of confusing: it is pointing to the trademark owner not as the misrepresented source of the service but as the explicit object of
critique. [emphasis added].

Just as Mr. Cooperstock’s website was intentionally designed to resemble the United website, unfaircanada.com is using colours, fonts, layouts, and phrasing that are similar to those used in the official Air Canada website. I wonder what shape a trademark infringement analysis would take if Air Canada were to take this advocacy group to court, especially in light of the criticism of the Cooperstock case.