Executive Summary: Key Legal and Evidentiary Issues

• Validity and ownership of the registered trademarks "quais pontons" and "pontoon dock" by the plaintiff at the time of the alleged misuse.
• Absence of concrete evidence that the expression "quais pontons" had a distinctive character and generated identifiable goodwill or achalandage for the plaintiff’s business.
• Lack of proof that the public was actually misled or that there was a real or likely risk of confusion between the parties’ products and businesses.
• Failure by the plaintiff to demonstrate specific, actual, or probable economic loss arising from the defendant’s brief use of the words in online advertising.
• Role of other market players and even a municipality using the same words “quais pontons”, undermining the claim of exclusivity and distinctiveness.
• Application of general civil liability principles (art. 1457 C.c.Q.) to a claim of misleading marketing, requiring proof of fault, damage, and causal link, which the plaintiff did not establish.

Factual background
Paul Trépanier founded the company Les Quais Pontons de la Mauricie inc. in 1997 to manufacture and sell floating docks. He remained a shareholder of this business until September 2024. His enterprise operated in Québec and developed a presence in the market for docks and pontoons. In 2016, another company, 9335-6301 Québec inc., was incorporated in the Laurentides region. It also manufactures docks, placing it in direct competition with Mr. Trépanier’s business. The dispute arises out of the interaction between these two competitors in the same niche market. In August 2003, Mr. Trépanier personally secured registration of the trademarks “quais pontons” and “pontoon dock” with the Canadian Intellectual Property Office, and those registrations were renewed in August 2018. He is therefore the individual owner of these trademarks, distinct from the corporation Les Quais Pontons de la Mauricie inc., and they remained valid at the time of the events in 2023. In June 2023, Mr. Trépanier noticed that 9335-6301 Québec inc. was promoting its products on Google and on its website using the wording “Rabais Estival – Fabricant de Quais-Pontons”. Interpreting this as an unauthorized use of his registered trademark “quais pontons”, he had a formal demand letter sent in July 2023 requiring the company to cease using the expression. Upon receipt of the demand, 9335-6301 promptly removed the wording from its advertisements and website, ceasing the complained-of use without delay. Despite this rapid correction, Mr. Trépanier chose to file a claim in the Small Claims Division of the Court of Québec, seeking $10,000 in damages for what he characterized as misleading marketing and an attempt to appropriate his business reputation and clientele.

Nature of the claim and procedural choice
The plaintiff framed his case as an action in civil liability under article 1457 of the Civil Code of Québec, based on alleged “commercialisation trompeuse” (misleading marketing or unfair competition by confusion). He alleged that the defendant’s use of “quais pontons” in its advertising was a wrongful act that infringed his trademark rights and diverted or risked diverting his clientele and goodwill. The Court notes that Mr. Trépanier had been informed by his legal advisor that other types of recourse existed under federal trademark legislation in the Federal Court or the Superior Court of Québec. Nonetheless, for reasons of cost and delay, he specifically elected instead to proceed in the Small Claims Division, where only general civil liability principles under Québec law could be applied. The defendant 9335-6301 Québec inc. denied liability. It maintained that before receiving the demand letter it was unaware of both Les Quais Pontons de la Mauricie inc. and of Mr. Trépanier’s registered trademarks. It also argued that the words “quais” and “pontons” are common, descriptive terms used generically in the industry to describe products, and as such lack strong distinctiveness or exclusivity.

Discussion of trademarks and absence of policy terms
The case does not involve an insurance policy or contractual policy wording; rather, it concerns federal trademark registrations and their interaction with Québec civil liability. The Court acknowledges that Mr. Trépanier holds valid registrations for the trademarks “quais pontons” and “pontoon dock” under the federal legislation governing trademarks and unfair competition. However, the judgment does not revolve around interpreting specific statutory clauses or policy terms; instead, those registrations serve as a factual backdrop and one element in the broader civil liability analysis. The central legal test is not a contractual clause, but the three-part framework for an action in misleading marketing based on article 1457 C.c.Q.

Legal framework for misleading marketing under civil liability
The Court reiterates that article 1457 C.c.Q. imposes extra-contractual civil liability where three elements are proved: a fault (breach of the applicable standard of conduct), a prejudice (damage), and a causal link between fault and prejudice. In the context of alleged misleading marketing or unfair competition, recent guidance from the Québec Court of Appeal clarifies that the plaintiff must establish three specific elements: (1) the existence of goodwill or achalandage associated with a distinctive mark or product; (2) deception of the public caused by the defendant’s misleading representation, through actual confusion or a real risk of confusion; and (3) actual or at least probable damages flowing from the misleading conduct. The trial judge structures the analysis around these three components, examining in turn whether the evidence satisfies achalandage, public deception, and damages.

Analysis of goodwill and distinctiveness
With respect to achalandage, the first requirement, the Court accepts that Mr. Trépanier is the owner of valid registered trademarks at the relevant time and that his business revenue was doing well both before and after summer 2023. This, however, is not enough to meet the legal threshold. Achalandage in this context requires that the mark have a distinctive character that allows ordinary consumers to identify a single commercial source. The plaintiff therefore had to show that ordinary consumers significantly associate the expression “quais pontons” with his enterprise in particular, and that the mark carries a reputation and attraction power in the marketplace. The Court concludes that these specific elements are not proven. It cannot infer from mere ownership of a registration and a healthy business that the necessary level of distinctiveness and linked goodwill exists in the mind of the public. The defendant also introduced evidence that other businesses and even a municipality use the same expression “quais pontons” in their own online materials. This undermines the claim that the term uniquely identifies Mr. Trépanier’s products. In light of this, the Court finds that neither the distinctiveness of the mark in the relevant market nor a concrete achalandage attached to that distinctiveness has been established on the evidence.

Analysis of public deception and confusion
Turning to the second element, the Court emphasizes that the plaintiff bears the burden, on a balance of probabilities, to prove either actual confusion in the public or at least a real risk of confusion. The benchmark is the ordinary, hurried consumer who consults the advertisements and might be misled into believing that the defendant’s products originate from the plaintiff’s business. In this case, the record contains no evidence of actual confusion: no clients testifying that they were misled, no inquiries misdirected to the wrong enterprise, and no market data or surveys. Nor is there persuasive evidence to show a real risk of confusion. Instead, the defendant demonstrates that the expression “quais pontons” is used by several other actors in the market, further weakening the inference that use of those words in a promotional line would lead the public to think specifically of Mr. Trépanier’s company. On this basis, the Court finds that the requirement of public deception or confusion is not met.

Analysis of damages and causation
On the third element, Mr. Trépanier needed to show that he suffered actual damages or at least probable damages as a result of the defendant’s use of the wording “Rabais Estival – Fabricant de Quais-Pontons”. He claimed $10,000, but did not support this figure with concrete evidence of lost contracts, reduced sales, price pressure, reputational harm, or any other quantifiable or reasonably inferable loss. The Court notes that the plaintiff himself indicates his business turnover was increasing both before and after the summer of 2023, which tends to contradict the idea of real financial harm linked to the brief use of the phrase by 9335-6301. In the absence of detailed financial proof or even credible estimates of lost opportunities, the Court concludes that no actual or probable prejudice has been demonstrated. It cannot simply presume economic damage from the mere fact that the registered wording was used in an online advertisement for a limited period, particularly where the defendant ceased the use as soon as it was put on notice.

Decision and outcome
Having reviewed all three conditions—achalandage, public deception, and damages—the Court finds that none of them is adequately established. While the plaintiff holds valid trademarks and the defendant did, for a time, use a similar expression in its promotional materials, those facts alone do not suffice under article 1457 C.c.Q. to ground liability for misleading marketing. There is no proven distinctive reputation attached specifically to “quais pontons”, no evidence of actual or likely confusion among ordinary consumers, and no demonstrated actual or probable financial loss. In these circumstances, the Court dismisses the plaintiff’s claim in its entirety. The successful party is the defendant, 9335-6301 Québec inc., and the Court orders Mr. Trépanier to pay it $288 in court costs as the total monetary amount awarded in the defendant’s favor.