TRADE MARKS |
Alticor Inc. v. Nutravite Pharmaceuticals Inc.
T-653-01
2003 FCT 718, Kelen J.
9/6/03
22 pp.
Appeal under Trade-marks Act, s. 56 from order of Registrar of Trade-marks refusing applicant's opposition to respondent's application for trade-mark "Nutravita" for use in association with "vitamins, minerals and herbs for retail sale through drug stores, pharmacies and health food stores"-- Whether Trade-marks Opposition Board erred in determining no reasonable likelihood of confusion between respondent's trade-mark "Nutravita" and applicant's trade-mark "Nutrilite" --Decisions of Registrar, whether of facts, law or discretion, within area of expertise, to be reviewed on standard of reasonableness simpliciter, that is "clearly wrong"-- Additional evidence would not have materially affected Registrar's decision--Therefore, standard of review herein reasonableness simpliciter--Whether trade-marks in question confusing--Test for confusion whether ordinary customer, unwary purchaser would believe product, service of one trade likely to be related to product, service of another trade--Act, s. 6(5) containing list of factors to be considered when determining whether confusion exists--Whether two marks confusing determination of fact--Factors enumerated in s. 6(5) need not be attributed equal weight--Neither of marks in question have high degree of inherent distinctiveness-- Evidence showing applicant's trade-mark in use in Canada since at least 1984, known to some degree among customers in relevant marketplace--Factor favouring finding of confusion--Parties' wares similar in nature--Parties, if not direct competitors, at least in trades of similar nature--Factor favouring finding of confusion--Fair degree of resemblance between two trade-marks as both incorporate prefix "Nutr"-- As of filing date, date of statement of opposition, trade-marks shared prefix "Nutr" with variety of other trade-marks-- Determining factors in this lack of inherent distinctiveness of "Nutrilite", high number of marks including prefix "Nutr" registered with respect to same wares--Customers of vitamins, minerals, herbal products accustomed to making minor distinctions between wares bearing prefix "Nutr", would not be confused between wares bearing "Nutravita" trade-mark and those bearing "Nutrilite" trade-mark-- Registrar's conclusion on this issue reasonable--While mark "Nutravita" "inherently weak", entitled to lower degree of protection, not entirely lacking inherent distinctiveness as consumers accustomed to make fine distinctions between various "Nutr" trade-marks based on differences in suffixes-- Registrar's conclusion on this point reasonable--Application dismissed--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 6, 56.