Discussion 5
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Jan 9, 2024
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Discussion 5 – chapter 18
In 1969, Cynthia and Frederick Brick opened a high-end furniture store in Winnipeg. They
operated the store under the name Brick's Fine Furniture. In 1988, Brick Warehouse Corp., a
national chain of lower-priced furniture, sent the Bricks a letter demanding that they stop
using "Brick" as part of their business name. In 1977, Brick Warehouse filed a number of
trademark applications that included the word "Brick." The Bricks had not registered the word
"Brick" as a trademark. As they had used the same name for more than 20 years, they
refused to comply with Brick Warehouse's demand. The furniture chain sued and after a
protracted legal battle that cost the Bricks $178 000 in legal fees, the case settled. The
parties agreed to co-exist in Winnipeg. What legal arguments were available to the Bricks?
How could the Bricks have prevented this dispute?
Notes:
What legal arguments were available to the Bricks?
-
Common law, trademark Rights
“Brick’s Fine Furniture opened in 1969, they used the name Brick from the owner’s last
name. even without the common law, trademark because they’ve been using the same name
continually one may argue that Brick Warehouse should have communicated before
protracting a legal battle that costs legal fees.
They’ve been using their name since 1969 continually. This shows that they have the right to
be using that name as they’ve been using it for over 20 years.
The
Supreme Court of Canada
has confirmed that it is the use of
the mark and not registration that confers priority of title
and the
exclusive right to the trademark.
-
Priority of use
We could also argue that Brick’s Fine Furniture opened in 1969. They’ve kept their name and
have created a connection with the consumers under Brick’s Fine Furniture. We can assume
that because they’ve continually using this name for over 20 years, they will do the same in
the future.
-
Lack of confusion
In addition, this can cause many confusion from the fact that they have similar names and
one is high end the other being lower, comfortable end of furniture stores.
-
Geographical limitation
-
Estoppel and laches
-
How could the Bricks have prevented this dispute?
Bricks have prevented this dispute if they have marked the trademark by buying the
right for the name of their company. In addition to that if Brick’s Fine Furniture has
registered their business Brick’s Wearhouse lawyer has suggested a different name.
"Hello,
The legal arguments available to the Bricks include common law trademark
rights, the priority of use, and the lack of confusion.
Common law trademark rights are based on usage. Brick's Fine Furniture,
established in 1969, derived its name from the owners' last name. Having
used this name since 1969 demonstrates their right to continue using it,
considering it has been in use for over 20 years. The Supreme Court of
Canada has confirmed that it is the use of the mark, not just registration,
that grants priority and the exclusive right to a trademark.
Regarding the priority of use, Brick's Fine Furniture has retained its name,
creating a strong connection with consumers over time. Changing the name
might confuse loyal customers and lead to consumer confusion.
Lastly, concerning the lack of confusion, similarity in names and selling
similar products can indeed confuse consumers. This confusion could result
in customers believing both companies are affiliated, potentially leading to
dissatisfaction with the product quality, causing harm to both companies.
Therefore, the available legal arguments are common law trademark rights,
priority of use, and lack of confusion.
To prevent this dispute, Brick's Fine Furniture should consider trademarking
its name. Furthermore, if this has already been completed, it's advisable for
legal counsel to suggest a different name for Brick Warehouse to avoid future
disputes.
Thank you,
Samantha"
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