Gainers Inc. v. Marchildon
T-1530-94
Reed J.
12/3/96
5 pp.
Appeal from decision of Registrar of Trade-Marks rejecting appellant's opposition to registration of "Sugarplum Fairy" as trade mark-Appellant owner of trade mark "Sugar Plum" registered for use in connection with sliced and prepared meats, poultry-Respondent seeking registration of trade mark "Sugarplum Fairy" for use in connection with candy, catering services-Test for confusion described in Trade-marks Act, s. 6-Registrar concluding appellant's mark possessed "fair degree of inherent distinctiveness" and "would have become known to fair extent in Canada"-Also concluding respondent's mark possessed "some inherent distinctiveness" as result of use of word "Fairy" as part of mark-Distinctiveness arising vis à vis application of mark "Sugar plum Fairy" to candy-Registrar's conclusions neither unwarranted nor incorrect-Description of appellant's mark not wrong-Wares said to be intrinsically different-While burden of proof rests with respondent, absence of evidence with respect to any given fact not to be treated as favouring appellant-Registrar entitled to assume catering services not normally ancillary business for wholesale and retail meat suppliers-Resemblance both visually and aurally between marks but ideas suggested by them quite different-Registrar making no error-Appeal dismissed-Trade-marks Act, R.S.C., 1985, c. T-13, s. 6.