“Green Shift”: A source of marketplace confusion?

“Green Shift” has become a familiar term in the Canadian media over the past few months. Plugging these words into Google draws up numerous hits, with the leading ones referring to the Liberal Party’s proposed plan to fight climate change. But long before Stéphane Dion and his colleagues decided to use this phrase to brand one of their federal election promises, the name “Green Shift” had already been trademarked by Jennifer Wright for her environmental-consulting firm, Green Shift Inc. In July 2008, Ms. Wright sued the Liberal Party for trademark infringement, claiming over $8.5 million in damages.

One of the primary goals behind trademark law is to prevent confusion in the marketplace. In this particular case, the potential for confusion is not immediately clear. This is not a case where another firm offering similar environmental-consulting services is operating under the same name as Ms. Wright’s company. The Liberals are a political party marketing an environmental policy rather than a private firm offering a comparable product or service. In light of this distinction, some might argue that no infringement has occurred.

This subtle distinction, however, does not completely eliminate the potential for confusion. Both entities deal with the highly politicized subjects of climate change and the environment, offering opinions to the public on various environmental issues. Given this overlap in subject matter, it is not unreasonable that an individual who hears the term “Green Shift” used in the media in reference to the Liberal Party platform, and then comes across the Green Shift Inc. web site might make the assumption that the two entities are affiliated. In fact, the Liberal Party itself has acknowledged this possibility by including a disclaimer in fine print at the bottom of its web site that denies any relationship with Green Shift Inc.

Although seemingly harmless, this source of confusion is particularly unfortunate for Ms. Wright. Becoming affiliated with a political party could have a significant impact on the goodwill of her business, affecting the types of clientele she attracts or potentially repels. The Liberal’s use of the term “Green Shift” has imposed an unwanted connection between the political party and her corporation. Presumably, this is precisely the type of predicament she had hoped to avoid by trademarking the corporation’s name in the first place. 

In September 2008, the lawsuit between Green Shift Inc. and the Liberal Party was settled. Under the agreement, the Liberal Party was allowed to continue using the name “Green Shift” by obtaining a license from Green Shift Inc. It seems the Liberal Party has also recognized that the issues raised by this case are not as clear-cut as they may initially appear. Although the two entities are not offering the same products or services, the fact that they address very similar issues is clearly enough to incite confusion within the public sphere.