Young Drivers of Canada Enterprises Ltd. v. Chan
T-636-97
Lutfy J.
30/8/99
16 pp.
Appeal from Registrar of Trade-marks' decision dismissing applicant's (Young Driver of Canada Enterprises Ltd.) objection to registration of respondent's (John Chan) trade mark-Both parties operating vehicle driver education schools-Issue likelihood of confusion-Applicant's trade mark consisting of two wellknown traffic symbols, one, diamond-shape and containing letter "Y", placed above and to left of other, red octagon, containing letter "D"-Respondent's trade mark consisting of red octagon containing letter "J" placed above and to left of blue pentagon containing letter "P"-Registrar found marks differed visually and orally and compared ideas suggested by each-Appeal dismissed-As issue not addressed by parties, and although determination on appeal may be closer to whether Registrar's decision "clearly wrong" or "unreasonable" (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748), standard of review adopted in Labatt Brewing Co. v. Molson Breweries, A Partnership (1996), 113 F.T.R. 39 (F.C.T.D.) applied: court free to review facts to determine whether Registrar's decision correct, but decision not be set aside lightly considering expertise of those who regularly make such determinations-Registrar herein placed greater weight on what he considered to be little resemblance, visual and oral, between marks-With respect to "ideas suggested by them", no person entitled to fence in common of English language and words of general nature cannot be appropriated over wide area: Fox, H.G. The Canadian Law of Trade Marks and Unfair Competition, 3rd ed. Toronto: Carswell, 1972-Same principle applicable to use by driver education school of non-inventive traffic signage-For example, octagon sign, commonly used to indicate "stop", carries disadvantage that another party may use same symbol in its different design-Upon review of evidence, open to Registrar to find two marks, on basis of first impression and imperfect recollection, not likely to be confusing-Most doubtful that average person endowed with average intelligence acting with ordinary caution would obtain services offered under respondent's mark with erroneous view he or she dealing with Young Drivers-Greater emphasis placed on visual and oral differences in marks over similarity in juxtaposition of traffic symbols-Evidence establishing two trade marks not confusing-Registrar's decision disclosing no reviewable error of fact and not inconsistent with applicant's case law.