Canadian Olympic Assn. v. Health Care Employees Union of Alberta
T-2274-91
Rothstein J.
14/12/92
11 pp.
Appeal from Registrar's rejection of Canadian Olympic Association's opposition to registration of respondent's trade mark and design (interlocking chain of five rings in circular design, representing bargaining units making up respondent union, surrounded by union name, circle) -- Trade-marks Act, s. 9(1)(n)(iii) prohibiting adoption of mark so nearly resembling as to be likely to be mistaken for any badge, crest, emblem or mark adopted and used by any public authority in Canada as an official mark -- Appellant public authority -- S. 12(1)(e) prohibiting registration if adoption prohibited by s. 9 or 10 -- Registrar comparing two of appellant's marks to respondent's mark, although appellant producing consolidation of fifteen marks, all having five interlocking rings in various adaptations -- Holding degree of resemblance not derminative since also significant difference -- Appeal allowed -- Onus on applicant for registration to establish no reasonable probability of confusion -- Absence of identity of wares or services between parties irrelevant -- When owner of family of marks objects to registration of allegedly similar mark, necessary to consider characteristics of all marks in family to assess degree of resemblance -- Degree of resemblance involving use of five interlocking rings not outweighed by differences -- Comparison of rings on appellant's and respondent's marks giving rise to resemblance contemplated by s. 9(1)(n)(iii) -- Upon close and careful look, words on respondent's mark would distinguish it, but close and careful look not test to be applied -- Question must be determined in context of whether person who, on first impression, knowing one mark only and having imperfect recollection of it would likely be deceived or confused -- Respondent's mark used not only in circumstances where words would be clear, but also on crests or badges and perhaps in other circumstances where could not be easily read -- Wording insufficient characteristic to create type of distinction respondent has onus of demonstrating -- Respondent's mark so nearly resembles as to be likely to be mistaken for appellant's marks -- Trade-marks Act, R.S.C., 1985, c. T-13, ss. 6(5)(e), 9(1)(n)(iii), 12(1)(e), 35, 56(1).