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Scope of Permissible Keyword Advertising Open for Question in British Columbia

The BC Court of Appeal has allowed an appeal in Vancouver Community College v. Vancouver Career College (Burnaby) Inc., 2017 BCCA 41.  The trial judge had dismissed Vancouver Community College’s claim that Vancouver Career College’s use of the domain name VCCollege.ca and bidding on Google keywords including “VCC” and “Vancouver Community College” amounted to passing off.  The BC Court of Appeal unanimously reversed that decision, holding that the evidence supported that Vancouver Community College had made out a case for passing off of its VCC trademark.  With respect to the relevant time for assessing confusion created by keyword advertising, the Court held that confusion should be assessed when the search results appear on a user’s screen, and not at a later time such as when a user actually arrives at the relevant website.

The case also raises issues of whether the plaintiff’s “VCC” and “Vancouver Community College” official marks had been wrongfully used by the defendant.  The Court of Appeal remitted this claim back to the BC Supreme Court for fresh consideration, as it found there were insufficient factual findings by the trial court for the Court of Appeal to make a determination on this issue.

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