In this regard, the Court held that the issue of whether the respondent's conduct constituted trademark infringement was not at issue in the application that pertained to allegations of materially false or misleading representations as part of a concerted effort to appear related to YPG.
The respondents are entities that operate Internet directory websites and engaged in conduct causing thousands of Canadian businesses, individuals and organizations to falsely believe that they were related to YGP. On or around December , prior to having operations in Canada, the respondents proceeded to register 13 Internet domains for websites that used or closely approximated YPG's trademarks. Moreover, the respondent's website, which was operational as of January , displayed features "remarkably similar" to YPG's business directories.
As of January , the respondent began sending unsolicited faxes, which already contained certain information, and asked the recipients to fill out, complete or update such information. Courts and regulatory authorities had already taken legal action in a number of jurisdictions, including in the U. WIPO had also ruled that the respondents' conduct in connection with their Australian websites was seriously misleading and the Hague District Court had granted YPG an injunction prohibiting the use by the respondents of the "Walking Fingers" design.
The case had a truly international aspect to it, resulting in the Competition Bureau in Canada working with its counterparts in the U.
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In response to thousands of claims from Canadians that they had been misled by the respondents' communications, the Commissioner brought an application alleging that the respondents' entire business was based on false and misleading representations that they were, in fact, someone else, and seeking various remedies, including a declaration that the respondents' activities violated section The Commissioner also ordered for restitution of monies paid, as well as sufficient monetary penalties to ensure the respondents' future compliance with the Act.
Under section In reviewing the evidence, the Court concluded that the unsolicited faxes sent by the respondents were designed to appear to have been sent from YPG and to falsely convey the idea that the recipient already had an account, thereby giving the impression that they were simply updating an existing record with YPG or obtaining a new benefit therefrom.
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The Court also concluded that the respondents made similar misrepresentations in their domain names, invoices, reminder notices and letters sent to the recipients. The Court concluded that the materiality of the misrepresentations was evidenced by the fact that in purchasing the respondents' services, Canadians believed that they were dealing with YPG and would never have ordered the service if they had known they were dealing with the respondents.
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In their defence, the respondents had argued that the statements could not be false or misleading, as the YELLOW PAGES trademark and the "Walking Finger" design were not distinctive of YPG, but had become generic for business directories, as had been alleged by the respondents in expungement proceedings before the Federal Court. However, the Court rejected this argument, noting that the issue in the application was not trademark violation, but whether the respondents had made materially false or misleading statements as part of a concerted effort to appear to be related to YPG.
The Court found that, whatever the result of the expungement proceedings, it was clear from the evidence that the respondents had traded upon the reputation of YPG and had falsely represented that they had a pre-existing relationship with the customers solicited. As such, the Court ultimately found that the respondents had made representations to the public that were false or misleading in a material respect, contrary to section The Court also granted several other remedies requested by the Commissioner, including a prohibition Order pursuant to section Most notably, the Court imposed very high administrative monetary penalties "AMPs" pursuant to section Archived Decisions, Notices and Orders DNOs remain in effect except to the extent they are amended or reversed by the Commission, a court, or the government.
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As per the Communications Policy of the Government of Canada, you can request alternate formats by contacting us. Customers could request a copy of the current version of a residential directory for their city free of charge, at any time, by calling YPG client services or by making a request on-line.
YPG noted that its policy to mass distribute annually business telephone directory listings the yellow pages would remain unchanged.