Two decisions just in time for spring cleaning and barbeque season. 

• Someone tried to trade-mark the term PEAMEAL BACON BACON for peameal-style bacon. A competitor, D & S Meat Products Ltd., opposed that application. The application disclaimed the right to the words “PEAMEAL BACON” and “BACON” (leaving open the question of what’s left to be protected). In making its argument to the Trade-Marks Opposition Board (TMOB), the applicant used the PIZZA PIZZA argument – namely, that the repetition of the word BACON qualified as a “unique linguistic construction” that consumers would recognize as a brand. In the famous decision of Pizza Pizza Ltd. v. Registrar of Trade Marks (1992), 67 C.P.R. (2d) 202 (F.C.T.D.) (famous for trade-mark agents, that is) the court allowed the mark PIZZA PIZZA for pizza, but that case was based on about 10 years of use of the mark in which time the owner created a “distinguishable identity” in the marketplace. The mere use of repetition cannot, on its own, defeat a claim that a mark is clearly descriptive. Decision: D & S Meat Products Ltd. v. Peameal Bacon of Canada Ltd.

 

• The second case opens up the competitive world of garage-door openers. The TMOB originally decided that there was no likelihood of confusion between an existing brand LIFTMASTER and newcomer LYNXMASTER, both for garage door openers. The court reviewed this decision and pointed out that the marks should be considered in their totality, without dissecting the marks and considering the word LIFT with LYNX in the absence of the rest of the trade-marks. The court decided that the two marks would be confusing with each other, and denied the application for registration of the LYNXMASTER marks. Decision: The Chamberlain Group, Inc. v. Links Industries Inc. 2010 F.C. 1287

 

Calgary – 07:00 MDT