Wellington County Brewery Ltd. v. Corby Distilleries Ltd.
T-429-94
Rothstein J.
16/2/95
14 pp.
Appeal under Trade-marks Act, s. 56(1) from decision of Registrar of Trade-marks refusing appellant's application to register trade mark "Iron Duke" for brewed alcoholic beverages -- Mark "Grand Duke" registered by respondent, used in association with sale of vodka since 1955 -- Respondent distiller not producing brewed alcoholic beverages -- Appellant intending to connect "Iron Duke" ale to Duke of Wellington known as Iron Duke-Consideration of confusion with respect to source of products, not products themselves -- In respect of confusion, legal burden on applicant to show absence of reasonable likelihood of confusion under s. 6(2) between applied for mark "Iron Duke" and opponent's mark "Grand Duke" -- Criteria set out in Act, s. 6(5) -- Member of Trade-marks Opposition Board not satisfied applicant met legal burden -- In absence of error of law or new evidence causing Court to reach different conclusion than that of Registrar, Court should be reluctant to interfere with decisions of Registrar -- Appellant not raising new significant evidence -- Although historically term Iron Duke applied to Duke of Wellington, not obvious Canadian consumers would associate term Iron Duke with Duke of Wellington-Evidence insufficient to conclude Canadians would make association and not mistake source of appellant's product -- Issue not whether appellant's ale might be confused with respondent's vodka, but that public might believe both products originate from same source-Vodka, ale not prime competitors -- Consumers would not mistake appellant's ale for respondent's vodka -- State of register not assisting appellant -- Public not so familiar with use of word Duke in association with alcoholic beverages to be able to distinguish sources of products using that word -- Appeal dismissed -- No error in law or other justification for interfering with member's decision -- Trade-marks Act, R.S.C., 1985, c. T-13, ss. 6, 56.