Melo's Food Centre Ltd. v. Borges Foods Ltd.
T-916-89
MacKay J.
27/9/95
25 pp.
Action for infringement of trade mark "Melo's" by defendant's trade mark "Borges"-Both marks used in association with ethnic foods intended particularly for consumers in the Portugese Canadian community, based in the greater Toronto area and also southwestern Ontario-Both use red, yellow and green, colours used in Portugese flag, and crest of Portugal or simulated crest of Portugal-Plaintiff alleging confusion and passing off and seeks expungement of defendant's mark and damages-Action dismissed-Both marks distinctive-Important differences: general shapes of two marks; name more prominent in plaintiff's mark, less so in defendant's-Applying the "general and not precise recollection" test formulated in British Drug Houses Ltd. v. Battle Pharmaceuticals, [1944] Ex.C.R. 239, defendant's mark not similar to and not closely resembling plaintiff's-Furthermore, plaintiff's claim to colours weak as many suppliers use trade marks incorporating national colours of particular communities-Two trade marks herein not closely resembling each other in appearance except in use of similar colours, but colours integral and incidental to combinations of elements distinctive from one another-No confusion, no infringement.