TRADE MARKS |
Infringement |
Tradition Fine Foods Ltd. v. Oshawa Group Ltd.
T-2112-99
2004 FC 1011, O'Reilly J.
20/7/04
25 pp.
Plaintiff registered trade-mark "Tradition" in 1993, in respect of frozen, unbaked bakery products--In 1997, registered second trade-mark for "Tradition" in respect of goods baked, then frozen--Plaintiff arguing defendants infringed trade-marks when they opened stores called "Tradition Market Fresh Foods" in Ontario and Eastern Canada and "Les Marchés Tradition" in Québec--Only Québec stores remain--Stores sell variety of food products, including baked goods--Most have in-store bakery--Plaintiff alleging defendants' use of "Tradition" infringes its trade-mark, confuses consumers and detrimental to goodwill built up over past 20 years of business--Plaintiff seeking declara-tions of infringement, invalidity of mark "Les Marchés Tradition"--Whether defendants' use of "Tradition" infringing plaintiff's right to exclusive use of its registered trade-mark according to Trade-marks Act (Act), s. 19-- Defendants using "Tradition" as part of name of commercial grocery business which sells vast array of food products--Not using word specifically in relation to bakery products--In fact, not selling bakery products with word "Tradition" on them--Plaintiff's registrations not extending to all retail sales of bakery products in respect of which word "Tradition" might be used--Plaintiff not proving violation of trade-marks--As to alleged violation under Act, ss. 7(b) and 20(1), plaintiff must show confusion or deception on part of defendant-- Plaintiff attempted to meet test for confusion by presenting evidence purporting to show actual confusion and expert evidence purporting to show consumers would infer plaintiff's products made or sold by defendants--Former not amounting to evidence of actual confusion--Expert evidence, consisting of survey of consumers in neighbourhoods surrounding "Les Marchés Tradition" store in Montréal, not persuasive on issue of confusion--No adverse inference should be drawn from fact defendants did not produce own survey or produce expert witness to contradict plaintiff's survey--Factors related to issue of confusion set out in Act, s. 6(5) considered--As to inherent distinctiveness, evidence showing "Tradition", or some close variation thereof, used by many other food producers who co-exist in marketplace seemingly without confusion--No evidence of confusion during eight years of co-existence between trade-marks--Differences in wares reducing likelihood of confusion--Differences in respective business activities suggesting little likelihood of confusion --Finally, although strong resemblance between plaintiff's, defendants' trade-marks, average consumer would not likely confuse them--Claim dismissed--Trade-marks Act, R.S.C., 1985, c. T-13, ss. 6(5), 7, 19 (as am. by S.C. 1993, c. 15, s. 60), 20 (as am. by S.C. 1994, c. 47, s. 196).