B. Jadow and Sons, Inc. v. Grupo Cyanomex, S.A. de C.V.
T-2729-89
McGillis J.
27/10/92
18 pp.
Appeal from decision of Trade-marks Opposition Board rejecting appellant's opposition to registration of trade mark "Kola Loka" -- Opposition based on confusion with appellant's trade mark, "Krazy Glue" -- "Kola Loka" and "Krazy Glue", as applied to glue, found to be inherently distinctive trade marks -- No reasonable likelihood of confusion -- Appellant arguing Board erred in finding "Kola Loka" not confusing with "Krazy Glue", doctrine of foreign equivalents not applicable in Canada and in failing to consider Paris Convention, art. 6 bis -- Under Trade-marks Act, s. 56, onus on appellant to establish Registrar's error -- Judge hearing appeal must have regard to all relevant circumstances -- Likelihood of confusion must be considered as matter of first impression to average consumer having vague or imperfect recollection of first trade mark -- All evidence filed with court must be considered in determining issue of confusion -- "Kola Loka" not confusing with "Krazy Glue" as matter of first impression to average consumer having vague or imperfect recollection -- "Krazy Glue" distinctive, well-known trade mark entitled to wide scope of protection in Canada -- Wares associated with both trade marks identical, travelling through same channels of trade -- No resemblance between "Krazy Glue" and "Kola Loka" in appearance or sound -- Only minimal proportion of Canadians speaking or understanding Spanish capable of making translation from Spanish to English -- No evidence as to packaging which respondent intends to use in Canada -- Packaging not surrounding circumstance likely to enhance confusion -- Mexican litigation concerning "Krazy Glue" and "Kola Loka" not surrounding circumstance likely to lead to confusion -- Trade-marks Act not enacted in implementation of obligations of International Convention for the Protection of Industrial Property (Paris Convention) to which Canada signatory -- Paris Convention not adopted as law of Canada, may only be used as interpretative aid where Act ambiguous -- Relevant provisions of Act not ambiguous -- Paris Convention, art. 6 bis of no assistance in interpretation of provisions -- American doctrine of foreign equivalents not based on statutory provision, merely principle to be applied in determining registrability of trade mark -- No basis for importing doctrine into Canadian law in view of statutory scheme in Act pertaining to determination of confusion -- Appeal dismissed -- Trade-marks Act, R.S.C., 1985, c. T-13, s. 56.