Federal Court

Industrial and Intellectual Property

Likelihood of confusion between applicant’s services and respondent’s wares

This was appeal from board’s decision refusing applicant’s application to register trademark. Applicant operated retail stores that specialized in sale of products including vitamins, nutritional supplements and fitness products. Applicant applied to register trade-mark “Nature’s Source” in association with services including retail store, franchising and e-commerce services. Respondent manufactured and sold healthy snack foods such as cereals, nuts and cookies under trademark “Natursource.” Respondent’s trademark was registered in 1983. Board found that there was likelihood of confusion with respondent’s trademark used in association with retail, franchising, and e-commerce services and refused to register applicant’s trademark. Appeal dismissed. Additional evidence filed by parties was not significant and would not have influenced board’s decision. As additional evidence was not material, standard of review was reasonableness. Question to be asked was whether, as matter of first impression, casual consumer somewhat in hurry who saw applicant’s trademark in association with service of selling various natural products, having no more than imperfect recollection of respondent’s trademark or trade name in association with wares it manufactured, would likely think that applicant’s services were of same source as respondent’s products. Board’s decision fell within range of possible, acceptable outcomes. It was not unreasonable for board to conclude that there was some kind of connection between applicant’s services and respondent’s wares.

Natursource Inc. v. Nature’s Source Inc. (July 20, 2012, F.C., Bedard J., File No. T-463-09) Decision at 72 C.P.R. (4th) 423 was affirmed. 220 A.C.W.S. (3d) 608.

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