TRADE MARKS |
Registration |
Weetabix of Canada Ltd. v. Kellogg Canada Inc.
T-2343-97
2002 FCT 724, Blais J.
24/6/02
20 pp.
Appeal pursuant to Trade-marks Act, s. 56 from Registrar's decision refusing application for registration of trade-mark "Fruit Dots" in association with breakfast cereals on ground confusing with respondent's trade-mark "Froot Loops"--Appeal allowed--Material date for assessing confusion under Act, s. 16(3) date of filing of application, therefore additional evidence submitted by applicant on events subsequent to material date shall be ignored--Registrar erred in refusing to register appellant's trade-mark "Fruit Dots"-- Onus on applicant to establish no risk of confusion with previously used, registered trade-mark--Herein, small differences suffice to distinguish trade-marks from one another: spelling of the word "Fruit" versus "Froot", appearance, sound, meaning of "Dots" versus "Loops"-- Search of register disclosing many trade-marks co-existing with respondent's "Froot Loops" containing word "Fruit", filed before material date--Applying Miss Universe, Inc. v. Bohna (1995), 58 C.P.R. (3d) 381 (F.C.A.); General Motors Corp. v. Bellows (1949), 10 C.P.R. 101, no confusion--As Registrar found appellant's trade-mark confusing with respondent's despite clear finding parties' marks not inherently distinctive, should have accepted comparatively small differences as sufficient to avert confusion--Co-existence of parties' trade-marks in United States for many years good indication of lack of possible confusion between trade-marks here in Canada and determinative factor, especially since trade-marks in question identical to trade-marks co-existing in United States--Concurrent use herein has had effect of mitigating issue of confusion--Use of trade-mark "Fruit Dots" unlikely to be confused with trade-mark "Froot Loops" having regard to similar third party trade-marks co-existing on Register and in marketplace, such as "Fruit Rings", "Fruit Whirls"--Registrar's decision therefore incorrect--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 16(3), 56.