In a recent decision concerning comparative advertising, the Federal Court found depreciation of goodwill and dismissed the other claims. Energizer sued Duracell over a sticker advertising campaign that claimed that Duracell’s batteries lasted longer than their Energizer equivalents by either directly referring to “Energizer” or indirectly referring to Energizer with the phrases “the bunny brand” or “the next leading competitive brand”.
The Court found depreciation of goodwill for Duracell’s use of stickers that directly referred to “Energizer”, but the Court found that Energizer had not provided sufficient evidence to establish depreciation of goodwill for the stickers that indirectly referred to Energizer. The Court also found that the statements on Duracell’s stickers were not false or misleading contrary to ss. 7(a) and 7(d) of the Trademark Act or s. 52(1) of the Competition Act, despite some of the stickers lacking qualifying language (e.g, “up to… longer lasting”).
Stay tuned for our more fulsome discussion of this decision, including what it may mean for future comparative advertising campaigns in Canada.
This decision is Energizer Brands, LLC v Gillette Company, 2023 FC 804.