Trademark Registrations For Future Ontario Place Spa Partially Expunged

On November 6, 2024, the Federal Court of Canada (the FC) issued its decision in Auberge & Spa Le Nordik Inc v. THERME Development (Cy) Ltd., 2024 FC 1765, partially granting an application by Auberge & Spa Le Nordik Inc. and Nordik Immobiliers Winnipeg Inc. (collectively, the Applicants) to expunge certain registered services from trademarks registered by THERME Development (CY) Ltd. (TD) (the Respondent).

The trademarks at issue are intended to be used in association with goods and services offered at Ontario Place after its revitalization into a health spa. The marks include THERME, THERME GROUP, and certain THERME composite marks (collectively, the THERME Marks). The Applicants sought to strike certain registered services from the THERME Marks, including, among other things, services with respect to health spa resorts, hydrotherapy, and thermal baths (collectively, the Impugned Services) on the basis that the THERME Marks were:

1. clearly descriptive or deceptively misdescriptive in the French language of the character of the Impugned Services;
2. the name in the French language of some of the Impugned Services;
3. confusing with the Applicant’s THERMËA mark; and
4. not distinctive.

The FC held that the THERME mark and THERME composite marks were clearly descriptive of the character of the Impugned Services, specifically relating to thermal baths. The THERME mark was also found to be deceptively misdescriptive of certain health spa services. However, none of the THERME Marks were found to be the name in the French language of the Impugned Services.

Furthermore, the FC held that the THERME and THERME GROUP marks were likely to cause confusion with the THERMËA mark due to the moderately high degree of resemblance and “virtually identical or sufficiently related” nature of certain services associated with the marks. The FC also found that the Applicant’s earlier use of the THERMËA mark for services that overlapped with select Impugned Services disentitled the Respondent from registering the THERME Marks for those Impugned Services.

Lastly, the THERME Marks were found to be non-distinctive in respect of certain Impugned Services because they were either clearly descriptive or confusing with the Applicant’s THERMËA mark.

Based on its findings, the FC ordered that many of the Impugned Services be struck from the registered services for the THERME Marks.

Summary By: Amy Ariganello