Earlier this month the Canadian Federal Court handed retail toy store Toys “R” Us a victory in its trademark lawsuit alleging “depreciation of goodwill,” among other causes of action including trademark infringement and “passing off,” against B.C., Canada-based dispensary, Herbs “R” Us. For reference, the two logos can be seen here:

Toys “R” Us was successfully represented by Canadian firm Gowling WLG, which provided an overview of the case and the “depreciation of goodwill” cause of action that is similar to a “dilution” or “tarnishment” claim here in the United States. A “depreciation of goodwill” claim is intended to prevent the misuse of a trademark owner’s rights, even where the elements have not been met to show infringement based on likelihood of confusion or passing off. Such a claim requires that the trademark owner prove:

There has been trademark use of the brand owner’s registered trademark or a mark “sufficiently similar” to the registered trademark to evoke a mental association between the two marks; The brand owner’s trademark is sufficiently well-known to have significant goodwill attached to it (though does not require that the mark be famous); That the brand owner’s trademark was used in a manner likely

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