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Baylor University v. Hudson's Bay Co.
A-35-99
Noël J.A.
22/6/00
20 pp.
Appeal from Trial Division decision ((1998), 84 C.P.R. (3d) 354) dismissing appeal from decision of Trade marks Opposition Board--Whether Trial Judge correctly held likelihood of confusion between proposed mark, those of respondent--Baylor University filed application to register trade mark "Baylor" for use in association with clothing, educational services--Hudson's Bay Company raising number of grounds of opposition, alleging trade mark confusing with own trade marks--Party seeking registration bears burden of establishing no likelihood of confusion--Issue of confusion arising from sale of wares under competing trade marks must be determined by reference to persons likely to purchase those wares--Collegiate clothing primarily bought, worn by males between ages of 10 and 40--Not only plausible but likely those interested in purchasing collegiate clothing would tend to be aware of association between trade marks displayed on such clothing and college or university which these trade marks represent--Evidence surrounding particular trade marks relied upon by Hudson's Bay company in support of opposition not suggesting likelihood of confusion when regard had to those likely to purchase collegiate clothing--Whether "The Bay" marks and "The Bay" Design mark could support Trial Judge's finding of confusion--Despite wide recognition of "The Bay" marks, no suggestion confusion arising with respect to use of these marks--No evidence of confusion involving marks commencing with letters Bay, namely "Bayard", "Bayou", "Bayside Jack"--Incidents of confusion surrounding "Baylor" watches in Calgary could not in themselves justify finding of confusion--When regard had to all surrounding circumstances, only conclusion open to Trial Judge appellant had discharged onus of demonstrating proposed mark would not likely be confused with those of Hudson's Bay Company--Appeal allowed--Trade-marks Act, R.S.C., 1985, c. T-13, s. 6.