Canada continues to await its first Court decision on the use of trademarks in keyword advertising. The British Columbia Court of Appeal issued its decision this week in the case of Private Career Training Institutions Agency (the Agency) v. Vancouver Career College (Burnaby) Inc. (VCC). While the Trial Judge’s decision, that the use of keyword advertising in this case was not misleading in the context of the applicable Bylaw, was upheld, the reasoning of the Trial Judge, to the extent it relied on an analysis of confusion under trademark law, was overruled.
At issue was whether the use of keyword advertising by VCC, which is the operator of a private college, was offside the provisions of a Bylaw of the Agency, which is a regulatory body created by the Private Career Training Institutions Act of British Columbia. The Bylaw in question states that an institution such as VCC “must not engage in advertising … that is false, deceptive or misleading. Deceptive advertising includes but is not limited to an oral, written, internet, visual, descriptive or other representation that has the capability, tendency or effect of deceiving or misleading a consumer“. The Agency went further and issued a guideline for interpretation of this Bylaw which specifically stated that keyword advertising and other similar practices would constitute false, deceptive or misleading activity. Read more