Why a Single Letter Can Cost You Your Brand: Fruiticana vs. Fruitocana

Case: Fruiticana Produce Ltd. v. Fruitocana Inc., 2025 FC 1990

Authors: Marian Wolanski and Heather Lindsay

Can a single letter distinguish your business from a national competitor? In the recent Federal Court decision in Fruiticana Produce Ltd. v. Fruitocana Inc., the answer was a resounding "no."

The conflict arose due to the similarities between the names of the two companies, separated only by the use of an “i” and “o”. Both Fruiticana (the “Plaintiff”) and Fruitocana (the “Defendant”) operate grocery stores. Since 1994, the Plaintiff has operated a chain of grocery stores in British Columbia and Alberta. The Defendant has been operating a grocery store in Toronto since at least 2023.

The Plaintiff is the registered owner of various trademarks which include, among others, the word mark “Fruiticana” in relation to the operation of grocery stores. When the Defendant ignored a cease-and-desist letter, the Plaintiff brought an action seeking an injunction and damages. The Defendant  failed to respond and this motion for default judgment was brought.

Are the two marks confusing?                                           

Section 20(1)(a) of the Trademarks Act sets out that a registered trademark is infringed if a person “sells, distributes or advertises any goods or services in association with a confusing trademark or trade name”. Importantly, the Supreme Court has stated previously that this prohibition of use applies throughout the country, even if the parties are operating in different regions.

There is confusion between two marks if “the use of both trademarks in the same area would be likely to lead to the inference that the goods or services associated with those trademarks are manufactured, sold, leased, hired or performed by the same person.” The court doesn't ask if a forensic expert would notice the difference between two names. Instead, they use the "casual consumer" test: Would a person, somewhat in a hurry and acting on first impression, be confused?

Here, Justice Grammond found that the casual consumer would be confused as between the word mark “Fruiticana” and Fruitocana. Because only one letter in the middle of the word was different, Justice Grammond found the resemblance was "striking". Further, the services offered by both parties are the same – those associated with the registered mark. Justice Grammond also accepted the affidavit evidence of the Plaintiff that the mark had acquired distinctiveness as it had been used for over 30 years to describe and advertise the grocery chain. Accordingly, the word mark was found to be infringed, and Fruitocana was ordered to change its name within 30 days. The Plaintiff was not awarded any damages.

Lessons for business owners

1. Geography is no shield

The Defendant likely thought they were safe operating in Ontario while the Plaintiff was in BC. They were wrong. A registered Canadian trademark grants the owner exclusive rights to that name across the entire country.

2. Descriptive names need time to grow

The word "Fruiticana" isn't naturally "distinctive". Use of the word “fruit” to describe a grocery store is not distinctive as it is describing what is being sold, and the suffix “cana” is common (such as in “Tropicana”). However, because they used the name for 30 years and invested heavily in advertising, the court ruled the name had "acquired distinctiveness." It had become a brand, not just a description. It is essential to have evidence of strong reputation or recognition of the mark.

3. There must be evidence of loss

While the Court did issue an order enjoining the Defendant from using the Fruitocana name, it did not order the Defendant pay the $15,000 in damages claimed. This was because the Plaintiff had no evidence of any damages: The stores were 3,000 km apart, and the Court specifically noted it was unlikely the Defendant’s operations had caused any losses “unless one goes grocery shopping by plane.”