Passing Off and the Protection of Trade Dress in Franchising
Passing Off and the Protection of Trade Dress in Franchising
Many businesses invest heavily in the interior and exterior design of their premises, the colours and shape of packaging and labels and even the sounds and smells that may be associated with a business to distinguish it from competitors. These factors, collectively known as trade dress or get-up, are one of the many benefits that a franchisee acquires when entering into a franchise agreement. A franchisor who has recognised the commercial value inherent in trade dress, and is aware of what aspects of trade dress are protected, whether that protection is best achieved through the common law tort of passing off or under the Trade-marks Act, and what remedies may be available has arguably brought an additional level of service and value to the table when negotiating with prospective franchisees.
This paper examines the common law tort of passing off as well as the statutory action available under the Trade-marks Act, considers the role of confusion in an action for passing off and identifies leading cases in Canada as well as certain key cases in the United States that may provide guidance. Finally the article compiles a list of suggestions for franchisors to consider when designing or asserting protection of trade dress.
2. The Common Law Tort of Passing Off
(a) Generally
The common law tort of passing off was recognized as a branch of the law of deceit in the mid 19th century, but over time has gradually evolved and increased its scope to meet changing commercial models. The early development of the law of passing off was summarized in Consumers Distributing v. Seiko Ltd., highlighting the tension between the two judicial conceptions of an action for passing off; firstly, as a remedy for the infringement of a proprietary right in a trade name or trade mark and secondly as a remedy to injury from fraudulent competition. The court concluded that the true basis of the action was to protect a proprietor’s right to the goodwill of his business. The Supreme Court of Canada has since repeatedly affirmed that the Trade-marks Act [the Act] and the law of passing off have a dual function to protect both the manufacturer of wares (or provider of a service) and the respective customers of the wares or service.
Section 10 of the Act has expressly recognized and preserved the common law action, giving protection to unregistered marks established by ordinary commercial use.
Where any mark has by ordinary and bona fide commercial usage become recognized in Canada as designating the kind, quality, quantity, destination, value, place of origin or date of production of any wares or services, no person shall adopt it as a trade-mark in association with such wares or services or others of the same general class or use it in a way likely to mislead, nor shall any person so adopt or so use any mark so nearly resembling that mark as to be likely to be mistaken therefore.
The protection of an unregistered mark at common law or under the Act will be limited to geographic territory where goodwill has been established. Generally this will be at a local level, but, importantly for franchisors, this can be at a national or even international level and there is no requirement for business activity to take place in the area where goodwill is asserted. Most importantly for a franchisor, the scope of subject matter protected at common law is broader than that protected under the Act and includes the “get-up” or trade dress of wares and of business premises.
Franchisors should be aware the common law action for passing off is not available in the province of Quebec, but a similar cause of action does exist under the Civil Code of Quebec. It also should be noted that s. 21 of the Act allows concurrent use of common law marks and trade-marks registered under the Act that might otherwise be confusing, where the common law mark has been in use prior to registration. This concurrent use of the unregistered mark will be limited to the geographic area in which the unregistered mark has acquired goodwill.
(b) Elements of the Action
In Ciba-Geigy Canada Ltd. v. Apotex Inc. the Supreme Court outlined a three part classification of the elements of passing off. A successful plaintiff must show the existence of goodwill in respect of the distinctiveness of the product; deception of the public due to a misrepresentation; and actual or potential damage.
This categorization has been recently confirmed by the unanimous court in Kirkbi AG v. Ritvik Holdings Inc.
(i) Existence of goodwill in the mark or trade dress:
Goodwill has been generally defined as
…the benefit and advantage of the good name, reputation, and connection of a business, the attractive force which brings in custom, and the one thing that distinguishes an old-established business from a new business at its first start…
and variants of this definition have been adopted by the Canadian courts. Goodwill is normally created through the carrying on of business, although the definition above does not preclude the creation of goodwill through marketing prior to the commencement of trading. This should be of particular interest to a franchisor intending on entering a new geographic area. Goodwill is often inferred where a business is successful enough to spark imitation provided that the mark or trade dress has acquired a secondary meaning, or in other words, have become distinctive of the plaintiff’s goods or services. The comments of Boyd J. in Coin Star Wars, adopted in Stink Inc., suggest that goodwill in a relevant demographic can also be established as a matter of fact through evidence if necessary.
(ii) Deception of the public due to a misrepresentation
Intention to deceive is no longer necessary component of this branch. Innocent or negligent misrepresentation that likely to deceive is now sufficient to attract liability. Misrepresentation will be viewed in the context of the ordinary member of the public or average customer who will take ordinary care in purchasing the goods they require. However, the average customer will depend on the nature of the particular product. The courts have generally chosen to assume that the average customer will exercise greater care in the purchase of a luxury item than in the selection of staple goods.
This suggests that it will be more difficult for franchisors or licensors of luxury items to demonstrate misrepresentation. However, it may be possible to demonstrate through marketing studies or other empirical data that the true measure of care exercised by a consumer is demonstrated not by the price tag alone but by the measure of the price tag as a proportion of disposable income.
The test for establishing misrepresentation is confusion and trade dress plays a crucial role in product identification and consumer choice. The statutory test for confusion set out s. 6(5) of the Act has no direct application in the common law tort of passing off but it has been held to be a useful guide in determining whether misrepresentation is likely to confuse the consumer. However in Westfair Foods Ltd. v. Jim Pattison Industries Ltd. the British Columbia Supreme Court felt that comments in Vapour Canada indicated s. 6 “applies only to cases involving the use of a trade-mark whereas s. 7(b) [and by analogy, passing off of trade dress] make no reference to a trade-mark.”
(iii) Actual or potential damage to the Plaintiff
This aspect is the least analysed of the constituent elements of the tort of passing off. It is sufficient to show a likelihood of damages, at least on a motion for an interlocutory injunction. However, in Jif Lemon, from which the characterization of the three constituent elements was adopted by the Supreme Court in Ciba-Geigy, the House of Lords strongly indicated that actual damage was a prerequisite to making out the cause of action at trial. The cases have identified numerous heads of damages that a plaintiff might demonstrate, but Christopher Wadlow has categorized these into two distinct branches; destruction and diversion.
Destruction occurs where attractive power of goodwill has been diluted such as when the defendant passes off inferior goods and customers no longer rely on or may even avoid the mark or products with the distinctive trade dress. Diversion occurs where the attractive power of the goodwill is undiminished but draws customers to the defendant’s premises or wares. Diversion is much more common and is far more relevant in regards to trade dress. In Kirkbi the Supreme Court took the opportunity to clarify the law of passing off, but unfortunately declined to comment on this branch of the tort.
(c) Juristictional Issues
A common law action for passing off of trade dress may only be brought through the provincial Superior Courts, and where an action is brought in provincial Superior Court any relief will be limited to the geographic jurisdiction of the court. This could present problems for a franchisor either in terms of legal costs, where a national scale franchisor must pursue separate actions in different provinces to protect elements of trade dress that are not registrable under the Act, or for enforcement, particularly of injunctive relief, where the passing off occurs at a inter-provincial level by a national scale rival.
(d) Conclusions
The common law action for passing off allows for broader scope of protection than is available for registered marks or distinguishing guise under the Act. However, protection will be limited to geographic area where the get-up has become distinctive. This may not be meaningful for a developed national franchise but could be critical for a business looking to develop a franchise model. Furthermore, any injunctive relief obtained in the provincial Superior Court will apply only within the provincial boundaries where the action is brought.
3. The Statutory Action for Passing Off Under s. 7(b) of the Trade-marks Act
(a) Generally
“No person shall…
7 (b) direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another…”
Section 7(b) of the Act has been characterized as a statutory codification of the common law tort of passing off. Registration under the Act provides specific legal and evidential presumptions but is not necessary to invoke protection under s. 7(b). It should be noted that the scope of protection available under s. 7(b) is limited to trade-marks that have been registered or are capable of registration. This includes trade dress only insofar as it fits within the statutory definition of distinguishing guise.
It is also necessary to distinguishing the statutory action for passing off from infringement of a registered or common law trade-mark. While registration confers exclusive rights in a trade-mark, unauthorized use in passing off is not infringement under the Act unless the use causes or is likely to cause confusion. Passing off protects the goodwill associated with the mark rather than the mark itself.
(b) Constituional Issues
Because of the constitutional division of powers between the Federal and Provincial governments, some litigants have challenged the authority of the Federal Parliament to provide a civil remedy as part of an overall scheme to regulate trade marks. The Federal power to legislate in this area is generally accepted to be found in s. 91(2) Regulation of Trade and Commerce of the Constitution Act, 1867. Recent commentators have differed as to the likelihood that s. 7(b) could be challenged successfully.
Daniel Gervais suggests that obiter comments in S.C. Johnson v. Marketing Int., and, an express conclusion in Motel 6 Inc. v. Motel 6 Ltd. that 7(b) is outside Parliament’s authority, may have opened the door for defendants to escape liability through constitutional challenge. Ronald Dimrock believes that any question of the constitutional validity of s. 7(b) of the Act was laid to rest by the Federal Court of Appeal in Asbjorn. However, Gervais indicates while this may appear to have been cleared up in Asbjorn, he notes that Federal Court (Trial Division) has not consistently followed the Asbjorn analysis in a series of cases regarding s. 7(a) of the Act, and that when the Federal Court of Appeal revisited the validity of s. 7(b) in Dumont Vins its approval was phrased only a conditional manner.
It seems to me to follow from these reasons that paragraph 7(b) is valid in so far as the passing off action is connected to a trade mark, registered or not, but that it would not be valid in a case such as the one at bar in which the passing off action, as a result of the fact that the absence of an unregistered trade mark is res judicata, is not connected to any trade mark.
The Supreme Court has recently given a strong and unqualified endorsement of s. 7(b) and its valid role in rounding out the legislative scheme that regulates trade-marks. It is hoped that further constitutional questions regarding the validity of s. 7(b) have been put to rest.
(c) Scope of Protection
Registration does not provide a monopoly in the mark, but rather the exclusive right to use the mark in association with the designated good or service. Use, in turn, depends on whether the mark relates to wares or services.
A trade-mark is defined in s.2 of the Act as:
2 (a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others,
(b) a certification mark,
(c) a distinguishing guise, or
(d) a proposed trade-mark.
Distinguishing guise is also defined in s. 2 of the Act.
“distinguishing guise” means
2 (a) a shaping of wares or their containers, or
(b) a mode of wrapping or packaging wares
the appearance of which is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others.
Distinguishing guise is clearly analogous to the types of factors that fall within the scope of trade dress in the common law action for passing off. As a form of statutory trade-mark distinguishing guise is registrable under s. 12 of the Act, but, unlike the types of trade-mark set out in subsections (a), (b) and (d), it is subject to s. 13. From the definition alone it is readily apparent that the aspects of trade dress protected within the scope of distinguishing guise are substantially less than that available at common law.
(d) Elements of the Statutory Action
In 2003 the Federal Court of Appeal considered the statutory action for passing off under s. 7(b) of the Act in Kirkbi AG v. Ritvik Holdings and endorsed the interpretation that s. 7(b) codifies the common law action; with one notable exception. An action under s. 7(b) must be in regards to a valid trade-mark within the meaning of the Act. “The definitions in s. 2 of the Act are integral to any trade-mark passing off action under s. 7(b)…”.
A successful plaintiff must therefore show: the litigation concerns a valid trade-mark within the meaning of the Act; the existence of goodwill in respect of the distinctiveness of the product; deception of the public due to a misrepresentation; and actual or potential damage. The second, third and fourth elements are the same as the requirements for a common law cause of action, and are discussed above. Only the first element, that the litigation concerns a valid trade-mark within the meaning of the Act, is discussed in this section.
A full discussion of what constitutes a registrable trade-mark is beyond the scope of this paper. The general rule regarding registrability of a trade-mark is found in s. 12 of the Act. Of particular interest in regards to trade dress and s. 7(b) is s.12(1)(d) which states that, subject to s. 13, a mark is registrable provided it is not confusing with a trade-mark already registered. Section 13 pertains exclusively to distinguishing guise and sets out the conditions under which a distinguishing guise is registrable as a trade-mark under the Act.
13(1) A distinguishing guise is registrable only if
(a) it has been so used in Canada by the applicant or his predecessor in title as to have become distinctive at the date of filing an application for its registration; and
(b) the exclusive use by the applicant of the distinguishing guise in association with the wares or services with which it has been used is not likely unreasonably to limit the development of any art or industry.
(2) No registration of a distinguishing guise interferes with the use of any utilitarian feature embodied in the distinguishing guise.
(3) The registration of a distinguishing guise may be expunged by the Federal Court on the application of any interested person if the Court decides that the registration has become likely unreasonably to limit the development of any art or industry.
The doctrine of functionality plays a key role in determining whether a distinguishing guise will registrable, but it is anticipated this will have greater application to the get-up of wares than it will to premises or the provider of services.
(e) Conclusions
The scope of trade dress protected under s. 7(b) is limited to those aspects that are registered or registrable as distinguishing guise under the Act. This is more limited than the common law action, but because the statutory action can be brought in Federal Court, the nature of the protection granted is substantially greater. Injunctive relief, for example, could be ordered throughout the country if necessary.
4. Establishing Confusion in an Action for Passing Off
Confusion is the result of a misrepresentation that leads a consumer to believe that the goods or services of the defendant are those of the plaintiff. It has been said that “confusion is the essence of the tort of passing off”. The New Jersey court has summed up the crux of the issue quite succinctly.
Of course, few would be stupid enough to make exact copies of another’s mark or symbol. It has been well said that the most successful form of copying is to employ enough points of similarity to confuse the public with enough points of difference to confuse the courts.
The key issues to consider are identifying the target audience and what factors will be considered in determining whether confusion exists or is likely to occur.
It had been the early practice of the courts to focus exclusively on the “ultimate consumer” but in recent years the trend has been to recognize the broader public interest and consider all links in the chain between manufacturer and end user. The defendant in Ciba-Geigy argued that the regulatory scheme that controlled the dispensing of prescription drugs excluded the end user from consideration within the target group who might be confused. The court disagreed, both in fact and in principle, and found that all members in the consumer chain between manufacture and ultimate consumption were relevant to the analysis.
The courts have also stressed that the proper standard is the average customer who “would take ordinary care in purchasing the goods they require, and, if desiring a particular brand, would take ordinary precautions to see that they get it.” The average customer will not be the same for all products and prospective plaintiffs would be well advised to take this into account when alleging a similar mark or trade dress is likely to cause confusion.
As seen above the courts have confirmed and clarified the relationship between the common law and statutory actions for passing off. Confusion as a result of a misrepresentation is essential to either cause of action and while Westfair Foods suggests otherwise, it seems logical that s. 6(5) has a role to play outside the statutory action.
The statutory test for determining confusion is set out in s. 6(5) of the Act:
In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including
(a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known;
(b) the length of time the trade-marks or trade-names have been in use;
(c) the nature of the wares, services or business;
(d) the nature of the trade; and
(e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them.
The Federal Court of Appeal considered the test in detail in United Artists v. Pink Panther Beauty Corp. and identified some of the problems in developing precedent in this area.
The cases turn on the particular and often unique facts. Two marks are seldom similar or dissimilar in the same way. Two cases do not often involve the same types of businesses or the same types of customers. As a result cases decided in the past may be interesting, but not generally helpful with regard to a decision of this kind.
However, there are some guiding principles that can be drawn from Pink Panther in interpreting the test for confusion.
The greater the inherent distinctiveness of the plaintiff’s mark the more likely there will be confusion. Confusion may result whether or not the wares or services are of the same general class including price and quality. The risk of confusion will be greater where the wares or services, though dissimilar, are distributed in the same types of stores or are of the same general category of goods. The type of trading environment is also relevant. Where one product is traded on a wholesale level and the other through retail outlets, this must be taken into consideration.
Where the marks are similar, the Court must assess the likely impression made on the public. The marks must be assessed in their entirety and dissected for minute examination, but it is still possible to focus on particular features of the mark that may have a determinative influence on the public’s perception. The court must also keep in mind that not all factors are equal and the circumstances of a case will determine how to weight the factors appropriately.
A series of cases involving the Mr. Submarine franchise has also given some guidance in what will constitute misrepresentation causing confusion of trade dress in the ort of passing off. In Mr. Submarine Ltd. v. Bikas the defendants had copied the exterior colour scheme (red and white), the colour and font of the store sign (red Cooper bloc), used a similar interior decor and adopted a trade name that made prominent use of the word “Submarine” while carrying on business in direct competition with the plaintiff. The defendants in Mr. Submarine Ltd. v. Emma Foods also copied the exterior colour scheme and the colour and font of the store sign. Both decisions made express reference to the use of the same fonts, and colour scheme and proportions in determining that confusion was sufficiently likely to occur to grant an interlocutory injunction, but neither made any reference to the statutory test set out in s. 6(5) of the Act.
In Mr. Submarine Ltd. v. Voultsos the plaintiff had obtained an interlocutory injunction restraining the defendant from using the trade name “Mrs. Submarine”. After the order was granted the defendant altered his signs, substituting the word “Ace” for the word “Mrs.”. At trial the plaintiff was only partially successful, receiving a permanent injunction restraining the defendant from:
...using or displaying any sign, notice, advertisement or poster in the predominant colours of red and white and bearing the words “Mr.” “Mrs.” or any similar word denoting a familial connection in conjunction with the words “Submarine or “Submarines” or any derivative thereof, or in any colour whatsoever bearing the words “Mr. Submarine” or “Mrs. Submarine”, in Cooper bloc type.
The defendant was permitted to continue to use the trade name “Ace Submarine”, even though the court noted that the exterior décor of the defendant’s stores were still highly similar to that of the plaintiff.
Pink Panther indicates that finding similar trade-marks to be confusing will be heavily fact driven. This suggests that expert opinions based on cognitive and behavioural sciences and statistical analysis will likely be more persuasive than affidavits or testimony of lay persons. The Mr. Submarine cases also point to an important inter-relationship between font, colour and visual proportions in establishing confusion in similar trade dress.
5. Leading Cases in Canada
The leading cases in Canada concerning the passing off of trade dress are: Ciba-Geigy; , Kirkbi; , Westfair Foods; and the set of Mr. Submarine cases including Mr. Submarine Ltd. v. Bikas, Mr. Submarine v. Emma, and Mr. Submarine v. Voultsos.
6. Leading Cases in the United States
There has been considerably more litigation concerning trade dress in the United States than in Canada. This is probably due the statutory recognition and protection of trade dress in the Lantham Act as well attempts to extend real or de facto patent and copyright protection. Some commentators feel that protection of the consumer interest plays a secondary role at best. Even a cursory look at the cases indicate that there are substantial differences in the protection of trade dress between Canada and the United States notwithstanding the fact that in the United States that protection is entirely statutory.
(a) Two Pesos, Inc v. Taco Cabana
In Two Pesos, Inc v. Taco Cabana the parties were competing in the Mexican food trade in the state of Texas. Taco Cabana, the plaintiff in the original action, had a history in the state, but was the new comer in the San Antonio market where the two businesses came into direct competition. Two Pesos had adopted a similar trade dress at inception but Taco Cabana did assert protection of the trade dress in its restaurants until faced with direct competition in several metropolitan areas. Taco Cabana was successful at trial on the basis that even though its trade dress had not acquired secondary-meaning it was non-functional and inherently distinctive and concurrent use by Two Pesos created a likelihood of confusion as to the source or association of its goods or services. Prior to this here seems to have been a consistent connection between inherent distinctiveness and secondary meaning; which would be similar to general principles of Canadian law. The Court of Appeal upheld the trial decision, rejecting the argument that a finding of no secondary meaning contradicted a finding of inherent distinctiveness.
The Supreme Court upheld the decisions, setting out a general rule regarding distinctiveness. “An identifying mark is distinctive and capable of being protected it is either inherently distinctive or has acquired distinctiveness through secondary meaning.” The court makes it clear that Taco Cabana’s trade dress is not inherently distinctive because of any association with its business, but rather because it is neither generic nor descriptive. While the terminology suggests familiar principles, the explanations reveal otherwise. The court seems to have anticipated criticism on this issue an opined that the doctrine of functionality adequately protected competition and the consumer interest.
The Supreme Court subsequently considered the doctrine of functionality in Wal-Mart Stores Inc. v. Samara Brothers, Inc. and TrafFix Devices, Inc. v. Marketing Displays, Inc. and seems to have used that doctrine to try and balance the protection of trade dress in Two Pesos that had only a low level of identification with the party seeking protection.
The commercial value of the United States market in the franchising industry is enormous. There are certain similarities, but prospective franchisors would be well advised to undertake a detailed analysis of the differences in the protection of trade dress before entering the US market or attempting to applying principles in Canada drawn from proceedings in American courts.
7. Recommendations
There are numerous ways a franchisor can go about protecting trade dress. These efforts can be divided into two groups; proactive which are steps taken to prevent others from copying trade and reactive which are steps taken after the trade dress has been copied. The most common reactive step is to take legal action which has been discussed extensively above. It is assumed that for most businesses taking proactive steps to ensure that trade dress is protected to the fullest extent possible so that litigation is unnecessary or resolved quickly is preferable to paying legal fees in a protracted dispute.
Careful structuring of a franchise agreement can substantially reduce protection efforts needed against defaulting or former franchisees. Restrictive covenants, non-competition agreements in particular will play an important role in any franchise agreement. Non-competition agreements should include both “In-term” and “post-term” periods. The “post-term” agreements should be reasonable, keeping in mind the overall purpose of passing off is to protect both the consumer and user of the mark and the court will consider this when looking at whether a non-competition agreement is unduly in restraint of trade. This is particularly relevant when the bargaining power is heavily weighted towards the franchisor.
Other means of retaining some control of elements of trade dress include owning the real-estate, or controlling the lease so that on default or termination of the franchise agreement the location can be assigned to a franchise designee. Phone numbers and domain names have also been the subject of passing off litigation and it is recommended that where possible, these be registered with the franchisor.
A more labour intensive strategy would be to monitor trade-mark applications advertised in the Trade-marks Journal, or undertake regular searches of the Canadian Trade-marks Database located at http://strategis.ic.gc.ca/cipo/trademarks/search/tmSearch.do. This is likely only practical for larger established franchises and will of course only provide notice of persons seeking to register trade dress as distinguishing guise. The franchisor will still have to decide whether it is more advantageous to oppose registration of the mark or take action for passing off at a later date.
The Mr. Submarine cases have demonstrated a link between colour, proportions and font that the courts are willing to recognize. It would be advisable for franchisors to consult with experts in graphic design and visual recognition to identify objective points of distinctiveness in current or proposed trade dress so that if protection must be asserted through the courts there is some evidentiary basis for demonstrating the likelihood of misrepresentation or confusion.
A final recommendation is that franchisors stay informed of legal developments in the field of trade-marks. A common-law tort such as passing off will continue to evolve as new fact situations come before the court and new commercial models become viable. There are also some commentators who feel that recognition of sounds or smells as a registrable trade-mark in Canada is logically consistent with is international norms and the purpose of the Act.. This could significantly expand the elements of trade dress that are eligible for protection under the Act for those who are positioned to take advantage of this if or when this happens.
Passing Off and the Protection of Trade Dress in Franchising - To learn more about this author, visit Peter Macrae Dillon's Website.
Like this article? Share it with your friends
1. Introduction
Many businesses invest heavily in the interior and exterior design of their premises, the colours and shape of packaging and labels and even the sounds and smells that may be associated with a business to distinguish it from competitors. These factors, collectively known as trade dress or get-up, are one of the many benefits that a franchisee acquires when entering into a franchise agreement. A franchisor who has recognised the commercial value inherent in trade dress, and is aware of what aspects of trade dress are protected, whether that protection is best achieved through the common law tort of passing off or under the Trade-marks Act, and what remedies may be available has arguably brought an additional level of service and value to the table when negotiating with prospective franchisees.
This paper examines the common law tort of passing off as well as the statutory action available under the Trade-marks Act, considers the role of confusion in an action for passing off and identifies leading cases in Canada as well as certain key cases in the United States that may provide guidance. Finally the article compiles a list of suggestions for franchisors to consider when designing or asserting protection of trade dress.
2. The Common Law Tort of Passing Off
(a) Generally
The common law tort of passing off was recognized as a branch of the law of deceit in the mid 19th century, but over time has gradually evolved and increased its scope to meet changing commercial models. The early development of the law of passing off was summarized in Consumers Distributing v. Seiko Ltd., highlighting the tension between the two judicial conceptions of an action for passing off; firstly, as a remedy for the infringement of a proprietary right in a trade name or trade mark and secondly as a remedy to injury from fraudulent competition. The court concluded that the true basis of the action was to protect a proprietor’s right to the goodwill of his business. The Supreme Court of Canada has since repeatedly affirmed that the Trade-marks Act [the Act] and the law of passing off have a dual function to protect both the manufacturer of wares (or provider of a service) and the respective customers of the wares or service.
Section 10 of the Act has expressly recognized and preserved the common law action, giving protection to unregistered marks established by ordinary commercial use.
Where any mark has by ordinary and bona fide commercial usage become recognized in Canada as designating the kind, quality, quantity, destination, value, place of origin or date of production of any wares or services, no person shall adopt it as a trade-mark in association with such wares or services or others of the same general class or use it in a way likely to mislead, nor shall any person so adopt or so use any mark so nearly resembling that mark as to be likely to be mistaken therefore.
The protection of an unregistered mark at common law or under the Act will be limited to geographic territory where goodwill has been established. Generally this will be at a local level, but, importantly for franchisors, this can be at a national or even international level and there is no requirement for business activity to take place in the area where goodwill is asserted. Most importantly for a franchisor, the scope of subject matter protected at common law is broader than that protected under the Act and includes the “get-up” or trade dress of wares and of business premises.
Franchisors should be aware the common law action for passing off is not available in the province of Quebec, but a similar cause of action does exist under the Civil Code of Quebec. It also should be noted that s. 21 of the Act allows concurrent use of common law marks and trade-marks registered under the Act that might otherwise be confusing, where the common law mark has been in use prior to registration. This concurrent use of the unregistered mark will be limited to the geographic area in which the unregistered mark has acquired goodwill.
(b) Elements of the Action
In Ciba-Geigy Canada Ltd. v. Apotex Inc. the Supreme Court outlined a three part classification of the elements of passing off. A successful plaintiff must show the existence of goodwill in respect of the distinctiveness of the product; deception of the public due to a misrepresentation; and actual or potential damage.
This categorization has been recently confirmed by the unanimous court in Kirkbi AG v. Ritvik Holdings Inc.
(i) Existence of goodwill in the mark or trade dress:
Goodwill has been generally defined as
…the benefit and advantage of the good name, reputation, and connection of a business, the attractive force which brings in custom, and the one thing that distinguishes an old-established business from a new business at its first start…
and variants of this definition have been adopted by the Canadian courts. Goodwill is normally created through the carrying on of business, although the definition above does not preclude the creation of goodwill through marketing prior to the commencement of trading. This should be of particular interest to a franchisor intending on entering a new geographic area. Goodwill is often inferred where a business is successful enough to spark imitation provided that the mark or trade dress has acquired a secondary meaning, or in other words, have become distinctive of the plaintiff’s goods or services. The comments of Boyd J. in Coin Star Wars, adopted in Stink Inc., suggest that goodwill in a relevant demographic can also be established as a matter of fact through evidence if necessary.
(ii) Deception of the public due to a misrepresentation
Intention to deceive is no longer necessary component of this branch. Innocent or negligent misrepresentation that likely to deceive is now sufficient to attract liability. Misrepresentation will be viewed in the context of the ordinary member of the public or average customer who will take ordinary care in purchasing the goods they require. However, the average customer will depend on the nature of the particular product. The courts have generally chosen to assume that the average customer will exercise greater care in the purchase of a luxury item than in the selection of staple goods.
This suggests that it will be more difficult for franchisors or licensors of luxury items to demonstrate misrepresentation. However, it may be possible to demonstrate through marketing studies or other empirical data that the true measure of care exercised by a consumer is demonstrated not by the price tag alone but by the measure of the price tag as a proportion of disposable income.
The test for establishing misrepresentation is confusion and trade dress plays a crucial role in product identification and consumer choice. The statutory test for confusion set out s. 6(5) of the Act has no direct application in the common law tort of passing off but it has been held to be a useful guide in determining whether misrepresentation is likely to confuse the consumer. However in Westfair Foods Ltd. v. Jim Pattison Industries Ltd. the British Columbia Supreme Court felt that comments in Vapour Canada indicated s. 6 “applies only to cases involving the use of a trade-mark whereas s. 7(b) [and by analogy, passing off of trade dress] make no reference to a trade-mark.”
(iii) Actual or potential damage to the Plaintiff
This aspect is the least analysed of the constituent elements of the tort of passing off. It is sufficient to show a likelihood of damages, at least on a motion for an interlocutory injunction. However, in Jif Lemon, from which the characterization of the three constituent elements was adopted by the Supreme Court in Ciba-Geigy, the House of Lords strongly indicated that actual damage was a prerequisite to making out the cause of action at trial. The cases have identified numerous heads of damages that a plaintiff might demonstrate, but Christopher Wadlow has categorized these into two distinct branches; destruction and diversion.
Destruction occurs where attractive power of goodwill has been diluted such as when the defendant passes off inferior goods and customers no longer rely on or may even avoid the mark or products with the distinctive trade dress. Diversion occurs where the attractive power of the goodwill is undiminished but draws customers to the defendant’s premises or wares. Diversion is much more common and is far more relevant in regards to trade dress. In Kirkbi the Supreme Court took the opportunity to clarify the law of passing off, but unfortunately declined to comment on this branch of the tort.
(c) Juristictional Issues
A common law action for passing off of trade dress may only be brought through the provincial Superior Courts, and where an action is brought in provincial Superior Court any relief will be limited to the geographic jurisdiction of the court. This could present problems for a franchisor either in terms of legal costs, where a national scale franchisor must pursue separate actions in different provinces to protect elements of trade dress that are not registrable under the Act, or for enforcement, particularly of injunctive relief, where the passing off occurs at a inter-provincial level by a national scale rival.
(d) Conclusions
The common law action for passing off allows for broader scope of protection than is available for registered marks or distinguishing guise under the Act. However, protection will be limited to geographic area where the get-up has become distinctive. This may not be meaningful for a developed national franchise but could be critical for a business looking to develop a franchise model. Furthermore, any injunctive relief obtained in the provincial Superior Court will apply only within the provincial boundaries where the action is brought.
3. The Statutory Action for Passing Off Under s. 7(b) of the Trade-marks Act
(a) Generally
“No person shall…
7 (b) direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his wares, services or business and the wares, services or business of another…”
Section 7(b) of the Act has been characterized as a statutory codification of the common law tort of passing off. Registration under the Act provides specific legal and evidential presumptions but is not necessary to invoke protection under s. 7(b). It should be noted that the scope of protection available under s. 7(b) is limited to trade-marks that have been registered or are capable of registration. This includes trade dress only insofar as it fits within the statutory definition of distinguishing guise.
It is also necessary to distinguishing the statutory action for passing off from infringement of a registered or common law trade-mark. While registration confers exclusive rights in a trade-mark, unauthorized use in passing off is not infringement under the Act unless the use causes or is likely to cause confusion. Passing off protects the goodwill associated with the mark rather than the mark itself.
(b) Constituional Issues
Because of the constitutional division of powers between the Federal and Provincial governments, some litigants have challenged the authority of the Federal Parliament to provide a civil remedy as part of an overall scheme to regulate trade marks. The Federal power to legislate in this area is generally accepted to be found in s. 91(2) Regulation of Trade and Commerce of the Constitution Act, 1867. Recent commentators have differed as to the likelihood that s. 7(b) could be challenged successfully.
Daniel Gervais suggests that obiter comments in S.C. Johnson v. Marketing Int., and, an express conclusion in Motel 6 Inc. v. Motel 6 Ltd. that 7(b) is outside Parliament’s authority, may have opened the door for defendants to escape liability through constitutional challenge. Ronald Dimrock believes that any question of the constitutional validity of s. 7(b) of the Act was laid to rest by the Federal Court of Appeal in Asbjorn. However, Gervais indicates while this may appear to have been cleared up in Asbjorn, he notes that Federal Court (Trial Division) has not consistently followed the Asbjorn analysis in a series of cases regarding s. 7(a) of the Act, and that when the Federal Court of Appeal revisited the validity of s. 7(b) in Dumont Vins its approval was phrased only a conditional manner.
It seems to me to follow from these reasons that paragraph 7(b) is valid in so far as the passing off action is connected to a trade mark, registered or not, but that it would not be valid in a case such as the one at bar in which the passing off action, as a result of the fact that the absence of an unregistered trade mark is res judicata, is not connected to any trade mark.
The Supreme Court has recently given a strong and unqualified endorsement of s. 7(b) and its valid role in rounding out the legislative scheme that regulates trade-marks. It is hoped that further constitutional questions regarding the validity of s. 7(b) have been put to rest.
(c) Scope of Protection
Registration does not provide a monopoly in the mark, but rather the exclusive right to use the mark in association with the designated good or service. Use, in turn, depends on whether the mark relates to wares or services.
A trade-mark is defined in s.2 of the Act as:
2 (a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others,
(b) a certification mark,
(c) a distinguishing guise, or
(d) a proposed trade-mark.
Distinguishing guise is also defined in s. 2 of the Act.
“distinguishing guise” means
2 (a) a shaping of wares or their containers, or
(b) a mode of wrapping or packaging wares
the appearance of which is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others.
Distinguishing guise is clearly analogous to the types of factors that fall within the scope of trade dress in the common law action for passing off. As a form of statutory trade-mark distinguishing guise is registrable under s. 12 of the Act, but, unlike the types of trade-mark set out in subsections (a), (b) and (d), it is subject to s. 13. From the definition alone it is readily apparent that the aspects of trade dress protected within the scope of distinguishing guise are substantially less than that available at common law.
(d) Elements of the Statutory Action
In 2003 the Federal Court of Appeal considered the statutory action for passing off under s. 7(b) of the Act in Kirkbi AG v. Ritvik Holdings and endorsed the interpretation that s. 7(b) codifies the common law action; with one notable exception. An action under s. 7(b) must be in regards to a valid trade-mark within the meaning of the Act. “The definitions in s. 2 of the Act are integral to any trade-mark passing off action under s. 7(b)…”.
A successful plaintiff must therefore show: the litigation concerns a valid trade-mark within the meaning of the Act; the existence of goodwill in respect of the distinctiveness of the product; deception of the public due to a misrepresentation; and actual or potential damage. The second, third and fourth elements are the same as the requirements for a common law cause of action, and are discussed above. Only the first element, that the litigation concerns a valid trade-mark within the meaning of the Act, is discussed in this section.
A full discussion of what constitutes a registrable trade-mark is beyond the scope of this paper. The general rule regarding registrability of a trade-mark is found in s. 12 of the Act. Of particular interest in regards to trade dress and s. 7(b) is s.12(1)(d) which states that, subject to s. 13, a mark is registrable provided it is not confusing with a trade-mark already registered. Section 13 pertains exclusively to distinguishing guise and sets out the conditions under which a distinguishing guise is registrable as a trade-mark under the Act.
13(1) A distinguishing guise is registrable only if
(a) it has been so used in Canada by the applicant or his predecessor in title as to have become distinctive at the date of filing an application for its registration; and
(b) the exclusive use by the applicant of the distinguishing guise in association with the wares or services with which it has been used is not likely unreasonably to limit the development of any art or industry.
(2) No registration of a distinguishing guise interferes with the use of any utilitarian feature embodied in the distinguishing guise.
(3) The registration of a distinguishing guise may be expunged by the Federal Court on the application of any interested person if the Court decides that the registration has become likely unreasonably to limit the development of any art or industry.
The doctrine of functionality plays a key role in determining whether a distinguishing guise will registrable, but it is anticipated this will have greater application to the get-up of wares than it will to premises or the provider of services.
(e) Conclusions
The scope of trade dress protected under s. 7(b) is limited to those aspects that are registered or registrable as distinguishing guise under the Act. This is more limited than the common law action, but because the statutory action can be brought in Federal Court, the nature of the protection granted is substantially greater. Injunctive relief, for example, could be ordered throughout the country if necessary.
4. Establishing Confusion in an Action for Passing Off
Confusion is the result of a misrepresentation that leads a consumer to believe that the goods or services of the defendant are those of the plaintiff. It has been said that “confusion is the essence of the tort of passing off”. The New Jersey court has summed up the crux of the issue quite succinctly.
Of course, few would be stupid enough to make exact copies of another’s mark or symbol. It has been well said that the most successful form of copying is to employ enough points of similarity to confuse the public with enough points of difference to confuse the courts.
The key issues to consider are identifying the target audience and what factors will be considered in determining whether confusion exists or is likely to occur.
It had been the early practice of the courts to focus exclusively on the “ultimate consumer” but in recent years the trend has been to recognize the broader public interest and consider all links in the chain between manufacturer and end user. The defendant in Ciba-Geigy argued that the regulatory scheme that controlled the dispensing of prescription drugs excluded the end user from consideration within the target group who might be confused. The court disagreed, both in fact and in principle, and found that all members in the consumer chain between manufacture and ultimate consumption were relevant to the analysis.
The courts have also stressed that the proper standard is the average customer who “would take ordinary care in purchasing the goods they require, and, if desiring a particular brand, would take ordinary precautions to see that they get it.” The average customer will not be the same for all products and prospective plaintiffs would be well advised to take this into account when alleging a similar mark or trade dress is likely to cause confusion.
As seen above the courts have confirmed and clarified the relationship between the common law and statutory actions for passing off. Confusion as a result of a misrepresentation is essential to either cause of action and while Westfair Foods suggests otherwise, it seems logical that s. 6(5) has a role to play outside the statutory action.
The statutory test for determining confusion is set out in s. 6(5) of the Act:
In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including
(a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known;
(b) the length of time the trade-marks or trade-names have been in use;
(c) the nature of the wares, services or business;
(d) the nature of the trade; and
(e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them.
The Federal Court of Appeal considered the test in detail in United Artists v. Pink Panther Beauty Corp. and identified some of the problems in developing precedent in this area.
The cases turn on the particular and often unique facts. Two marks are seldom similar or dissimilar in the same way. Two cases do not often involve the same types of businesses or the same types of customers. As a result cases decided in the past may be interesting, but not generally helpful with regard to a decision of this kind.
However, there are some guiding principles that can be drawn from Pink Panther in interpreting the test for confusion.
The greater the inherent distinctiveness of the plaintiff’s mark the more likely there will be confusion. Confusion may result whether or not the wares or services are of the same general class including price and quality. The risk of confusion will be greater where the wares or services, though dissimilar, are distributed in the same types of stores or are of the same general category of goods. The type of trading environment is also relevant. Where one product is traded on a wholesale level and the other through retail outlets, this must be taken into consideration.
Where the marks are similar, the Court must assess the likely impression made on the public. The marks must be assessed in their entirety and dissected for minute examination, but it is still possible to focus on particular features of the mark that may have a determinative influence on the public’s perception. The court must also keep in mind that not all factors are equal and the circumstances of a case will determine how to weight the factors appropriately.
A series of cases involving the Mr. Submarine franchise has also given some guidance in what will constitute misrepresentation causing confusion of trade dress in the ort of passing off. In Mr. Submarine Ltd. v. Bikas the defendants had copied the exterior colour scheme (red and white), the colour and font of the store sign (red Cooper bloc), used a similar interior decor and adopted a trade name that made prominent use of the word “Submarine” while carrying on business in direct competition with the plaintiff. The defendants in Mr. Submarine Ltd. v. Emma Foods also copied the exterior colour scheme and the colour and font of the store sign. Both decisions made express reference to the use of the same fonts, and colour scheme and proportions in determining that confusion was sufficiently likely to occur to grant an interlocutory injunction, but neither made any reference to the statutory test set out in s. 6(5) of the Act.
In Mr. Submarine Ltd. v. Voultsos the plaintiff had obtained an interlocutory injunction restraining the defendant from using the trade name “Mrs. Submarine”. After the order was granted the defendant altered his signs, substituting the word “Ace” for the word “Mrs.”. At trial the plaintiff was only partially successful, receiving a permanent injunction restraining the defendant from:
...using or displaying any sign, notice, advertisement or poster in the predominant colours of red and white and bearing the words “Mr.” “Mrs.” or any similar word denoting a familial connection in conjunction with the words “Submarine or “Submarines” or any derivative thereof, or in any colour whatsoever bearing the words “Mr. Submarine” or “Mrs. Submarine”, in Cooper bloc type.
The defendant was permitted to continue to use the trade name “Ace Submarine”, even though the court noted that the exterior décor of the defendant’s stores were still highly similar to that of the plaintiff.
Pink Panther indicates that finding similar trade-marks to be confusing will be heavily fact driven. This suggests that expert opinions based on cognitive and behavioural sciences and statistical analysis will likely be more persuasive than affidavits or testimony of lay persons. The Mr. Submarine cases also point to an important inter-relationship between font, colour and visual proportions in establishing confusion in similar trade dress.
5. Leading Cases in Canada
The leading cases in Canada concerning the passing off of trade dress are: Ciba-Geigy; , Kirkbi; , Westfair Foods; and the set of Mr. Submarine cases including Mr. Submarine Ltd. v. Bikas, Mr. Submarine v. Emma, and Mr. Submarine v. Voultsos.
6. Leading Cases in the United States
There has been considerably more litigation concerning trade dress in the United States than in Canada. This is probably due the statutory recognition and protection of trade dress in the Lantham Act as well attempts to extend real or de facto patent and copyright protection. Some commentators feel that protection of the consumer interest plays a secondary role at best. Even a cursory look at the cases indicate that there are substantial differences in the protection of trade dress between Canada and the United States notwithstanding the fact that in the United States that protection is entirely statutory.
(a) Two Pesos, Inc v. Taco Cabana
In Two Pesos, Inc v. Taco Cabana the parties were competing in the Mexican food trade in the state of Texas. Taco Cabana, the plaintiff in the original action, had a history in the state, but was the new comer in the San Antonio market where the two businesses came into direct competition. Two Pesos had adopted a similar trade dress at inception but Taco Cabana did assert protection of the trade dress in its restaurants until faced with direct competition in several metropolitan areas. Taco Cabana was successful at trial on the basis that even though its trade dress had not acquired secondary-meaning it was non-functional and inherently distinctive and concurrent use by Two Pesos created a likelihood of confusion as to the source or association of its goods or services. Prior to this here seems to have been a consistent connection between inherent distinctiveness and secondary meaning; which would be similar to general principles of Canadian law. The Court of Appeal upheld the trial decision, rejecting the argument that a finding of no secondary meaning contradicted a finding of inherent distinctiveness.
The Supreme Court upheld the decisions, setting out a general rule regarding distinctiveness. “An identifying mark is distinctive and capable of being protected it is either inherently distinctive or has acquired distinctiveness through secondary meaning.” The court makes it clear that Taco Cabana’s trade dress is not inherently distinctive because of any association with its business, but rather because it is neither generic nor descriptive. While the terminology suggests familiar principles, the explanations reveal otherwise. The court seems to have anticipated criticism on this issue an opined that the doctrine of functionality adequately protected competition and the consumer interest.
The Supreme Court subsequently considered the doctrine of functionality in Wal-Mart Stores Inc. v. Samara Brothers, Inc. and TrafFix Devices, Inc. v. Marketing Displays, Inc. and seems to have used that doctrine to try and balance the protection of trade dress in Two Pesos that had only a low level of identification with the party seeking protection.
The commercial value of the United States market in the franchising industry is enormous. There are certain similarities, but prospective franchisors would be well advised to undertake a detailed analysis of the differences in the protection of trade dress before entering the US market or attempting to applying principles in Canada drawn from proceedings in American courts.
7. Recommendations
There are numerous ways a franchisor can go about protecting trade dress. These efforts can be divided into two groups; proactive which are steps taken to prevent others from copying trade and reactive which are steps taken after the trade dress has been copied. The most common reactive step is to take legal action which has been discussed extensively above. It is assumed that for most businesses taking proactive steps to ensure that trade dress is protected to the fullest extent possible so that litigation is unnecessary or resolved quickly is preferable to paying legal fees in a protracted dispute.
Careful structuring of a franchise agreement can substantially reduce protection efforts needed against defaulting or former franchisees. Restrictive covenants, non-competition agreements in particular will play an important role in any franchise agreement. Non-competition agreements should include both “In-term” and “post-term” periods. The “post-term” agreements should be reasonable, keeping in mind the overall purpose of passing off is to protect both the consumer and user of the mark and the court will consider this when looking at whether a non-competition agreement is unduly in restraint of trade. This is particularly relevant when the bargaining power is heavily weighted towards the franchisor.
Other means of retaining some control of elements of trade dress include owning the real-estate, or controlling the lease so that on default or termination of the franchise agreement the location can be assigned to a franchise designee. Phone numbers and domain names have also been the subject of passing off litigation and it is recommended that where possible, these be registered with the franchisor.
A more labour intensive strategy would be to monitor trade-mark applications advertised in the Trade-marks Journal, or undertake regular searches of the Canadian Trade-marks Database located at http://strategis.ic.gc.ca/cipo/trademarks/search/tmSearch.do. This is likely only practical for larger established franchises and will of course only provide notice of persons seeking to register trade dress as distinguishing guise. The franchisor will still have to decide whether it is more advantageous to oppose registration of the mark or take action for passing off at a later date.
The Mr. Submarine cases have demonstrated a link between colour, proportions and font that the courts are willing to recognize. It would be advisable for franchisors to consult with experts in graphic design and visual recognition to identify objective points of distinctiveness in current or proposed trade dress so that if protection must be asserted through the courts there is some evidentiary basis for demonstrating the likelihood of misrepresentation or confusion.
A final recommendation is that franchisors stay informed of legal developments in the field of trade-marks. A common-law tort such as passing off will continue to evolve as new fact situations come before the court and new commercial models become viable. There are also some commentators who feel that recognition of sounds or smells as a registrable trade-mark in Canada is logically consistent with is international norms and the purpose of the Act.. This could significantly expand the elements of trade dress that are eligible for protection under the Act for those who are positioned to take advantage of this if or when this happens.
Passing Off and the Protection of Trade Dress in Franchising - To learn more about this author, visit Peter Macrae Dillon's Website.
Like this article? Share it with your friends
 | |
 |
No article feedback found. |
| |
Leave Your Feedback |
 | |
| |||
John PowerJohn Power, founder of Biltmore Franchise Consulting, has extensive experience developing and marketing franchises and business opportunities. He has been in and around franchising for over twenty years. From 1980 through 1990 he conceptualized, organized, and developed the American Video Association. He grew AVA to 2,000 national members, before selling the company it 1990. It was later merged into another home video marketing company. From 2000 to 2005 he worked as a contract marketing and human resources consultant to several local and national companies. In 2005 Mr. Power began working as a franchise development consultant on a full-time basis. Since that time he has helped more than three dozen companies initiate and develop their franchising program. He notes that there are many companies interested in developing a franchise program, and who need his specialized assistance. Mr. Power is a “hands-on” franchise consultant. He said, “I am the ‘nuts and bolts’ person who tends to the details for my clients.” Mr. Power holds a B.S. degree with a major in Marketing. See: www.biltmorefranchise.com You may contact Mr. Power at: jpower@biltmorefranchise.co - Visit John Power's Website |
|||
|
To learn more about the Evan Elite Author Program please contact us. | |||
 | |
|  |
Subscribe to Peter's articles
 | |
|
|  |
 | |
|
| |
 | |||||||
|
 | ||
 |
||
 |
||
 |
||
|
| ||
 |
| Have you written articles that would be of value to entrepreneurs? Become an expert on our site by publishing them! Expose yourself to a wide audience, drive more traffic to your website and get more sales! Click Here for details. |
|
|
 |
| Modeling the Masters: Learn the true secrets behind Walt Disney's business success factors & grow your company! Video produced by Phanta Media |
|
|
 |
"Learn straight from Evan how you can Make a Full Time Income (And More) from a Website"
Click Here To Learn More |
|
|
|
|
Get advice & tips from famous business owners, new articles by entrepreneur experts, my latest website updates, & special sneak peaks at what's to come!
|
|
|
 How to Get a Life Book of Leadership Organized in 10 mins Leadership Style Assessment Instant Direct Mail |
|
 | ||
 |
Guide To ERP Software
Business Management Software | |
 |
Top 50 Political Blogs
Top Political Blogs of 2009 | |
| ||
 | ||||
| ||||
|
| ||||
| ||||
|
|
|
|
|
||||||||||||
|
Email us your ideas on how to make our website more valuable! Thank you Sharon from Toronto Salsa Lessons / Classes for your suggestions to make the newsletter look like the website and profile younger entrepreneurs like Jennifer Lopez and Sean Combs!
|
|
|
| ||||||||||
|
| ||||||||||
|
|
||||||||||