HEAD OF MOOSE DESIGN

By Richard Stobbe

When is a moose just a moose?

Apparently when it is reclined in a parlour sipping gin.

In Moosehead Breweries Limited v Eau Claire Distillery Ltd., 2018 TMOB 24 (CanLII), Canadian brewer Moosehead Breweries, the oldest, privately owned, independent brewery in Canada complained about confusion based on its well-known moose marks for beer (including Registration number TMA667312, as shown above).

Moosehead alleged that the PARLOUR GIN DESIGN for gin (Application No. 1,667,113) owned by Alberta’s own Eau Claire Distillery Ltd., was confusing with Moosehead’s own moose marks for beer.  In Eau Claire’s mark, an anthropomorphic moose character and anthropomorphic bear character are seated in formal clothing amidst Victorian parlour furnishings, sipping gin and engaging in polite conversation. Does the use of the moose for gin make this mark confusing with Moosehead’s brand for beer?

Canadian courts tell us that the test for confusion is “a matter of first impression in the mind of a casual consumer somewhat in a hurry who sees the [mark], at a time when he or she has no more than an imperfect recollection of the [prior] trade-marks, and does not give pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the marks.”

In this case, the decision-maker dismissed Moosehead’s opposition, after going through the factors, namely: (a) the inherent distinctiveness of the trade-marks and the extent to which they have become known; (b) the length of time each has been in use; (c) the nature of the goods, services or business; (d) the nature of the trade; and (e) the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested by them.  There is no reasonable likelihood of confusion since the marks bear little resemblance in appearance, sound, and in the ideas suggested by them.

Moosehead’s challenge was rejected, and the Eau Claire mark will proceed.

Calgary – 07:00 MST