Executive Summary: Key Legal and Evidentiary Issues

• Scope and admissibility of expert evidence on trademark distinctiveness and confusion under Quebec civil procedure rules.
• Characterization of the terms « Aéroports de Montréal » as descriptive or distinctive and whether they have acquired a secondary meaning in the minds of consumers.
• Necessity of expert opinion versus the judge’s own common knowledge in interpreting ordinary French terms and evaluating descriptiveness.
• Limits on experts opining on issues that might overlap with questions of law without usurping the trial judge’s role.
• Proper use and weight of consumer-perception and marketing studies to prove trademark reputation, distinctiveness, and risk of confusion.
• Proportionality and efficient case management in striking portions of an expert report that are unnecessary or minimally useful to the court.

Background and parties

Aéroports de Montréal (ADM) operates the principal airport facilities in the Montréal region and holds and uses the name and mark « Aéroports de Montréal ». ADM brought an action against Développement Aéroport Saint-Hubert de Longueuil (DASH-L), the developer and operator associated with the Saint-Hubert airport near Montréal. ADM alleges that DASH-L engages in misleading commercial practices by using the designations « Aéroport métropolitain de Montréal » and « MET — Aéroport métropolitain de Montréal ». According to ADM, these names are likely to cause confusion in the public mind with ADM’s own mark « Aéroports de Montréal », both as to the identity of the operator and the origin of the services being provided. ADM seeks a permanent injunction to stop DASH-L from using these expressions, invoking sections 7(b) and 7(c) of the federal Loi sur les marques de commerce (Trade-marks Act), dealing with confusing and misleading use in the course of trade, as well as article 1457 of the Code civil du Québec on extra-contractual civil liability. ADM’s theory is that misleading branding and confusion in the marketplace amount to a fault that causes it prejudice in terms of reputation and commercial goodwill.

Competing expert evidence on reputation, distinctiveness and confusion

In support of its claims, ADM filed the expert report of Professor Pierre Balloffet, a marketing communications specialist. His report concludes that the mark « Aéroports de Montréal » enjoys a high level of notoriety and reputation in the public’s mind. On that foundation, he opines that the introduction of a new designation incorporating similar words—such as « Aéroport métropolitain de Montréal » and « MET — Aéroport métropolitain de Montréal »—creates a risk of harmful confusion among a wide public, both in the local Montréal area and outside the region. Balloffet relies in particular on a prior online survey study titled « Callosum & Next Moov », which measured how consumers perceive and understand various terms associated with ADM. DASH-L responds with its own expert report prepared by Professor Marc-Antoine Vachon, a marketing expert specializing in tourism destinations, service marketing and traveller behaviour. Vachon challenges Balloffet’s interpretation of the consumer-perception data and argues that the words « Aéroports de Montréal » are essentially descriptive of the services (airport operation and related functions) and the geographic origin (Montréal) rather than functioning as a distinctive trademark. In his view, the evidence does not support a conclusion that these words have acquired a secondary meaning or that the public associates them with a single, unique commercial source in the way required for trademark distinctiveness. Vachon further contends that any possible confusion in practice would stem from other factors than DASH-L’s use of « Aéroport métropolitain de Montréal » and « MET — Aéroport métropolitain de Montréal ».

Nature of the interlocutory motion

Before trial on the merits, ADM filed a motion to strike portions of the Vachon report. It argued that Vachon overstepped his role as an expert by pronouncing on legal questions that lie at the heart of the dispute, thereby usurping the trial judge’s function. ADM relied on provisions of the Code de procédure civile governing expert evidence and pre-trial control of expert reports. The court reviewed the legal framework for admissibility of expert opinion: a report must be relevant, necessary to assist the trier of fact, not otherwise barred by evidentiary rules, and authored by a sufficiently qualified expert. For new or technical methods, the underlying knowledge must also be reliable. The necessity criterion is particularly important: expert evidence is reserved for matters that likely exceed the experience and knowledge of a judge and for which the judge cannot effectively reach a conclusion without specialized assistance. If the judge can understand and resolve the point based on ordinary language and common knowledge, an expert opinion may be unnecessary and even risk encroaching on the judge’s role. The court also emphasized that, even when those base criteria are met, a report can still be excluded or trimmed where its probative value and utility are clearly outweighed by prejudice or by the need for efficient, proportionate case management. However, at the preliminary stage courts are cautioned to be prudent and not to usurp the trial judge’s task of weighing evidence, intervening only where the lack of necessity, relevance, qualification, or utility is obvious from the report itself.

Assessment of the expert’s mandate and overreach

ADM targeted several specific parts of the Vachon report. First, it challenged the section answering “Question 1”, which asked whether the expressions « Aéroports de Montréal » and « Aéroport de Montréal » are the names of one of the services for which they are used, particularly in airport management and administration. The court held that this portion of the report had, at best, very limited usefulness for the trial and did not satisfy the necessity requirement. The terms « aéroport » and « Montréal » are everyday French words whose basic meaning raises no interpretive difficulty; resorting to a standard dictionary such as Larousse is something the court can do autonomously. Likewise, discussion about the difference between singular and plural and the absence of a phonetic distinction between the expressions was something the judge could readily assess without expert help. The court noted that similar questions had been resolved in past trademark cases, such as Cabanons Mirabel, without the benefit of expert evidence. Because the analysis did not truly call on Vachon’s specialized marketing expertise and instead addressed matters solidly within the court’s own competence, these paragraphs failed the necessity test and were ordered struck. ADM also argued that in paragraphs dealing with “Question 2(a)”—whether the marks had acquired a second meaning—Vachon improperly repeated and applied legal criteria derived from counsel’s submissions, in particular criteria said to flow from sections 6(5)(a) and 12(3) of the Loi sur les marques de commerce. According to ADM, by doing so he moved from technical evidence into legal analysis. The court rejected that characterization. It stressed that the underlying issue—whether a descriptive expression has become distinctive in the relevant public’s mind and acquired a secondary meaning—is one that necessarily calls for the assessment of consumer perception, market reach, reputation and goodwill, matters that may legitimately require marketing expertise. The court underlined that experts can, within limits, refer to concepts and vocabulary that also appear in statutes or legal argument, without that alone turning their evidence into an inadmissible legal opinion. Occasional overlap in terminology is acceptable so long as it does not become the core of the expert’s work or purport to dictate legal conclusions to the judge.

Treatment of the analysis on secondary meaning and confusion

On the remainder of Question 2(a) and the related Question 2(b)—whether the words « Aéroports de Montréal » have acquired a secondary meaning in consumers’ minds—the court took a cautious approach. It acknowledged that ADM feared Vachon was effectively deciding the case by stating, in concise fashion, that there was no sufficient evidence of distinctiveness, no secondary meaning and no confusion attributable to the impugned designations. However, the judge noted that an expert report must be sufficiently reasoned to allow the court to understand both the factual bases and the reasoning chain supporting the conclusions. Vachon’s report was relatively terse: it presented bottom-line opinions followed by brief explanatory comments. That style, while authorised, can create the impression that the expert is substituting himself for the court, especially where conclusions align closely with a party’s legal position. Nonetheless, the judge held that these concerns went to weight and appreciation, which fall squarely within the remit of the trial judge, not to preliminary admissibility. The court accepted that, in this trademark and misleading-marketing context, the evaluation of consumers’ perceptions, the scope of reputation, and the existence or absence of a secondary meaning are factual and technical matters where the perspective of a qualified marketing specialist may genuinely assist the court. As a result, the court refused to strike Vachon’s broader analysis and conclusions on secondary meaning and confusion, leaving their ultimate weight and credibility to be assessed at trial alongside Balloffet’s competing opinions.

Outcome of the motion and successful party

In the end, the Superior Court granted ADM’s motion in part. It ordered the partial rejection of the Vachon report by striking paragraphs 13 to 20, which dealt with Question 1, and directed that any references to those paragraphs be removed from the “Résumé de mes conclusions” at paragraph 11 and from the “Conclusion” at paragraph 97. ADM was awarded its judicial costs for the motion. The decision is interlocutory and does not decide liability or the underlying trademark and civil-fault issues; the merits of whether DASH-L’s branding constitutes misleading commercialization or infringes ADM’s rights will be determined at a later trial. In this procedural skirmish, however, ADM emerges as the successful party, having obtained the partial striking of the defence expert’s report. The judgment awards “frais de justice” in ADM’s favour but does not specify any monetary amount, and from the text available it is not possible to determine the total value of costs or any other monetary award ordered.