Yves Gastebled (Plaintiff)
v.
Joseph Stuyck and Paul Malhame (Defendants)
Trial Division, Pratte J.—Montreal, P.Q., Janu-
ary 12; Ottawa, January 26, 1973.
Trade marks—Restaurant named "Le Petit Havre'—Com-
petitive restaurant named "Le Petit Navire'-Confusion—
Injunction—Trade Marks Act, s. 7(b).
Plaintiff operated a restaurant with considerable success
under the name "Le Petit Havre" since 1963 in Montreal. In
1972 defendants opened a restaurant in the adjoining house
under the name "Le Petit Navire".
Held, defendants had infringed section 7(b) of the Trade
Marks Act and should be enjoined from using the name "Le
Petit Navire". English-speaking persons would likely be
confused by the names of the two adjoining restaurants.
ACTION for damages.
COUNSEL:
Pierre Lamontagne for plaintiff.
Joseph Miller for defendants.
SOLICITORS:
Laing, Weldon, Courtois and Co., Mont-
real, for plaintiff.
J. Miller, Montreal, for defendants.
PRATTE J.—Plaintiff has operated a restaurant
known as "Le Petit Havre", on St. Vincent
Street in Montreal, for a number of years. In
July 1972 defendants opened a restaurant which
they named "Le Petit Navire", beside plaintiff's
establishment. Plaintiff alleges that by adopting
this name defendants infringed section 7(b) of
the Trade Marks Act, which prohibits any mer
chant from drawing "public attention to his .. .
business in such a way as to cause or be likely
to cause confusion ...". In his action plaintiff
is seeking issuance of a permanent injunction,
and the sum of $5,000 as damages.
At the hearing counsel for the plaintiff asked
that the question of assessing the damages
claimed be subject to referral under Rule 500,
following the trial. Counsel for the defendants
agreed to this motion. Thus the only question to
be decided is whether defendants infringed the
statute by using the name "Le Petit Navire" to
identify their restaurant.
The facts which gave rise to this action are
not in dispute.
Plaintiff has operated the restaurant "Le Petit
Havre" since February 10, 1963. He originally
did business at 437 St. Vincent Street, in rented
premises which were destroyed by fire on
March 13, 1968. Plaintiff then had to close his
establishment, which he re-opened on July 27,
1969, at 443 St. Vincent Street, in the house
adjoining the one he had first occupied.
Plaintiff soon had considerable success with
his business, which is still the case as indicated
by the flattering articles which have been pub
lished from time to time concerning it. Plain
tiff's clients fall into three groups. First, there
are those who frequent the restaurant at noon:
these are mostly regular customers, the majority
of whom speak French. His clientele in the
evening is mainly composed of English-speaking
people. Besides these two groups of Montreal -
ers there are, at noon and in the evenings,
numerous tourists, most of them English-speak
ing, who one assumes are attracted by the
descriptions given in tourist guides like those
produced at the hearing.
In the spring of 1972 work was completed on
rebuilding the house where plaintiff had operat
ed his restaurant until 1968. Plaintiff learned
that defendants were proposing to open a res
taurant there to be called "Le Petit Navire". On
May 9, 1972 his lawyers wrote on his instruc
tions to defendants, requiring them to choose
another name for their restaurant. This sum
mons went unanswered and in the following
July "Le Petit Navire" opened its doors at 437
St. Vincent Street, in the building adjoining that
in which "Le Petit Havre" is located.
There is a distance of approximately 70 to 90
feet separating the entrances to the two restau-
rants. Over the door of each one hangs a sign on
which the name of the restaurant appears; the
signs are similar but the colours are different.
Plaintiff alleged that since defendants' restau
rant opened, "Le Petit Havre" has often been
confused with "Le Petit Navire". He cited cases
in which customers who had reserved a table at
one restaurant went to the other. He noted that
on two occasions suppliers had confused the
two establishments. He added, lastly, that tele
phone calls intended for defendants were often
received at "Le Petit Havre". Moreover, plain
tiff's testimony on this point was confirmed by
that of defendants, who admitted that some of
their customers, most of them English-speaking,
told them they had confused the two
restaurants.
Defendants alleged at the hearing that they
had chosen the name of their restaurant before
they even knew they would be opening it near
"Le Petit Havre". They also explained why they
had chosen, and continued to use, the name.
There is no need to repeat these explanations
here, since I have to determine not whether
defendants acted in good faith, but whether they
conformed to the law.
Counsel for the plaintiff did not argue that the
resemblance between the names "Le Petit
Havre" and "Le Petit Navire" was such that it
could of itself be a source of confusion. He
contended that if, in addition to this resem
blance, we take into account all the circum
stances of the case, it necessarily follows that
defendants contravened section 7(b) of the
Trade Marks Act. He pointed out that defend
ants' restaurant is situated right beside that of
plaintiff; and he emphasized that many of plain
tiff's customers are English-speaking tourists.
Counsel for the defendants, on the other
hand, argued that his clients were acting legally
in doing business under the name "Le Petit
Navire". There is, he stated, no resemblance
between the words "Havre" and "Navire"; as
far as the words "Le Petit" are concerned, he
submitted that the names of many business
establishments begin with these words. Counsel
for the defendants noted that while it was estab
lished that some persons had confused the two
restaurants, there was no evidence to indicate
that the two names were the cause of this.
Finally, he argued that for persons who do not
speak or understand French, the use of any
business name at all can be a source of
confusion.
In my opinion, the arguments put forward by
defendants' counsel cannot be accepted.
As counsel for the plaintiff suggested, this
case must be decided by taking all the circum
stances into account. The evidence showed that
the reputation of plaintiff's establishment
brought him a large number of English-speaking
tourists, many of whom were coming to "Le
Petit Havre" for the first time, whether on the
advice of a friend or the recommendation of a
tourist guide. Customers came to St. Vincent
Street in the knowledge that they were looking
for a restaurant named "Le Petit Havre".
Taking into consideration the fact that one does
not read a restaurant sign with as much atten
tion as a lawyer reads a statutory provision, I
feel it is likely that English-speaking customers,
seeing a sign reading "Le Petit Navire", might
think they were looking at the sign for "Le Petit
Havre". Not only are the first two words of the
names of the two restaurants identical, but in
addition the letters A-V-R-E are found in "Na-
vire" as well as "Havre".
Plaintiff's action will therefore be allowed
with costs. Defendants are forbidden to contin
ue to call their restaurant "Le Petit Navire", but
this injunction will not come into effect until 30
days after the date of the judgment.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.