The holder of a trademark does not have to prove that there is confusion in the mind of the public, it is sufficient to demonstrate that there can be confusion.
The name and logo of a company are often one of its most valuable assets. Just think of Coca-Cola, Nike or McDonald's. We can't imagine how much these giants invest to market and protect their trademark.
A franchisor discovers that a competitor plans to open a restaurant in Laval under the name "Le Four à bois", using a logo similar to its registered trademark. As they are about to grant a franchise in the "beautiful city of Laval", they feel aggrieved because they have developed an "Italian gastronomy" concept under the banner "Resto le Four" and there are already several franchises in the metropolitan area.
Despite the franchisor's formal notice, the competitor opens their restaurant without changing its name or logo. The franchisor turns to the Court* and requests an injunction. The judge grants it and emphasizes that the degree of similarity must be assessed based on the "imperfect recollection" test. This test relies on the reactions of an adult consumer who is not on guard and who has often heard the advertising and seen the franchisor's logo. When faced with a competitor's billboard advertising the same type of cuisine and displaying a logo that is essentially composed of the same elements, the consumer may mistakenly believe that this competitor offers the same products and services as those offered by the franchisor or one of its franchisees.
It is therefore not necessary to prove that there is confusion in the mind of the public, it is sufficient to demonstrate that the use of the name or logo would be likely to create confusion. Remember, companies are alike: terrified at the thought of being imitated and obsessed with the idea of their name being used.
*C.S. 540-05-006917-029, 2002-12-19
