Weetabix of Canada Ltd. v. Kellogg Canada Inc.

Weetabix of Canada Ltd. v. Kellogg Canada Inc.

The material date for assessing confusion under s.16(3) is the filing date of the application; applying s.6(2) and s.6(5) to the filing-date circumstances the Registrar erred — FRUIT DOTS and FROOT LOOPS are composed of descriptive elements giving a narrow ambit of protection and, in light of co-existing third‑party marks and long concurrent use without known confusion (including in the U.S.), the differences (spelling and second-word dissimilarity) suffice to avoid likelihood of confusion; appeal allowed and application should be registered.

Citation
2002 FCT 724
Parties
Appellant / Applicant: Weetabix of Canada Limited; Respondent / Opponent: Kellogg Canada Inc.
Court
Federal Court
Jurisdiction
Canada
Judgment Date
24 June 2002
Procedural Posture
Trade Marks Appeal Under the Trade Marks Act / Appeal From Registrar Decision (remitted for Redetermination)
Outcome
Appeal allowed with costs; Registrar's decision dated September 4, 1997 set aside; matter referred back for redetermination on basis that Application No. 704,156 for registration of the trade-mark FRUIT DOTS for breakfast cereals be granted.
Legal Topics
Likelihood of Confusion, Registration of Proposed Trade Mark, Distinctiveness, Coexistence of Marks, Material Date for Assessment
Source Language
English
Intellectual Property Trade Mark Law Civil Procedure Likelihood of Confusion Registration of Proposed Trade Mark Distinctiveness Coexistence of Marks Material Date for Assessment

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Parties

Weetabix of Canada Limited

Appellant / Applicant

Kellogg Canada Inc.

Respondent / Opponent

Procedural Posture

Trade Marks Appeal Under the Trade Marks Act / Appeal From Registrar Decision (remitted for Redetermination)

Legal Issues

  1. 1 What is the material date for assessing confusion under section 16(3) of the Trade-marks Act?
  2. 2 Did the Registrar err in refusing to register the trade-mark FRUIT DOTS as confusing with FROOT LOOPS?

Ratio Decidendi

The material date for assessing confusion under s.16(3) is the filing date of the application; applying s.6(2) and s.6(5) to the filing-date circumstances the Registrar erred — FRUIT DOTS and FROOT LOOPS are composed of descriptive elements giving a narrow ambit of protection and, in light of co-existing third‑party marks and long concurrent use without known confusion (including in the U.S.), the differences (spelling and second-word dissimilarity) suffice to avoid likelihood of confusion; appeal allowed and application should be registered.

Court Disposition

Appeal allowed with costs; Registrar's decision dated September 4, 1997 set aside; matter referred back for redetermination on basis that Application No. 704,156 for registration of the trade-mark FRUIT DOTS for breakfast cereals be granted.

Orders

  • Appeal allowed with costs
  • Registrar's decision refusing Application No. 704,156 dated September 4, 1997 set aside