TRADE MARKS |
Registration |
Cie Générale des Établissements Michelin--Michelin & Cie v. Contiental General Tire Canada Inc.
T-2816-96, T-2817-96, T-2819-96, T-2820-96, T-2821-96, T-2822-96, T-2823-96, T-2824-96
Pelletier J.
20/10/00
19 pp.
Appeal from Registrar of Trade-mark's decision rejecting Michelin's opposition to registration of 8 trade marks ("XP 2000", "XP 2000 MS", "XP 2000 AS", "XP 2000 V", "XP 2000 H", "XP 2000 Z", "Ameri Way XT & Design", "Ameri XL 4 & Design") by respondent General Tire--Michelin arguing each proposed trade mark confusing with one or more of its own trade marks featuring letter X--Both parties in business of manufacturing, selling tires to distributors--Products often sold side by side in same premises--Michelin argues General Tire did not meet onus of showing no likelihood of confusion; evidence of state of register did not support conclusion numerous parties had used X-type marks in connection with sale of tires; distinction between primary and secondary marks not relevant to issue of confusion in opposition proceedings--Appeal dismissed--Additional evidence must go significantly beyond what was before Registrar to justify Court's interference with Registrar's findings of fact: Garbo Group Inc. v. Harriet Brown & Co. (1999), 3 C.P.R. (4th) 224 (F.C.T.D.)--Here, additional evidence did not add anything of significance to evidentiary record--As to issue of confusion generally, no fault in Registrar's, reasoning analysis of factors to be considered under Act, s. 6(5)--Consideration of lack of evidence of actual confusion not inappropriate--Any allegation trade mark not confusing because of manner of use doomed to failure since mark still protected, even if manner of use changes--However, where mark composed of letters only, or of letters and numbers, arranged to be suggestive of model number or type of coding that might identify characteristics of merchandise, may be that customers may be less inclined to confusion: GSW Ltd. v. Great West Steel Ind. Ltd. (1975), 22 C.P.R. (2d) 154 (F.C.T.D.)--Registrar's reference to secondary marks not indicating pattern of use preventing confusion, unsupportable conclusion, but rather recognition that nature of appellant's and respondent's marks such that consumers would look for clearer identification of source of goods, marks themselves being more suggestive of particular model of tires than of origin thereof--Finally, "Ameri XL 4 & Design" and "Ameri Way XT & Design" distinguishable for appellant's marks by use of prefix "Ameri"--Trade-marks Act, R.S.C., 1985, c. T-13, s. 6(5).