IN THE MATTER OF AN OPPOSITION by Lavo Inc. to application No. 1 223 419 for the trade-mark LAVA PRO filed by WD-40 Company.
[1] On July 13, 2004, WD-40 Company (the “Applicant”) filed an application to register the trade-mark LAVA PRO (the “Mark”) based upon proposed use of the Mark in Canada in association with hand soap.
[2] The application was advertised for opposition purposes in the Trade-marks Journal of March 30, 2005.
[3] On May 30, 2005, a statement of opposition against the application was brought jointly by Groupe Lavo Inc. and Lavo Inc. Since the filing of the statement of opposition, there has been two subsequent mergers resulting in the corporation named Lavo Inc., hereinafter the “Opponent”.
[4] The grounds of opposition may be summarized as follows: the Applicant’s application does not conform to the requirements of s. 30(i) of the Trade-marks Act, R.S.C. 1985, c.T-13 (“the Act”), the trade-mark is not registrable pursuant to s. 12(1)(d), the Applicant is not the person entitled to registration of the Mark pursuant to s. 16(3)(a), the Applicant is not the person entitled to registration of the Mark pursuant to s. 16(3)(c) and the Mark is not distinctive.
[5] The Applicant filed and served a counter statement, in which it denied the allegations against it.
[6] The Opponent’s evidence consists of the statutory declaration of Pierre Allard together with Exhibits PA-1 to PA-4. Mr. Allard was not cross-examined on his statutory declaration. The Applicant elected not to file evidence.
[7] Both the Applicant and the Opponent filed a written argument and were ably represented at a hearing.
[8] At the beginning of the hearing, the Applicant sought leave to file additional evidence namely a certified copy of its registration No. UCA18486 for the trade-mark LAVA covering soap. Given the nature of the evidence and the other party’s consent, leave was granted.
Onus and Material Dates
[9] The Applicant bears the legal onus of establishing, on a balance of probabilities that its application complies with the requirements of the Act. There is however an initial burden on the Opponent to adduce sufficient admissible evidence from which it could reasonably be concluded that the facts alleged to support each ground of opposition exist [see John Labatt Ltd v. Molson Companies Ltd. (1990), 30 C.P.R. (3d) 293 (F.C.T.D.) at 298; Dion Neckwear Ltd. v. Christian Dior, S.A. et al. (2002), 20 C.P.R. (4th) 155 (F.C.A.)].
[10] The material dates that apply to the grounds of opposition are as follows:
• s. 30 - the filing date of the application [see Georgia-Pacific Corp. v. Scott Paper Ltd. (1984), 3 C.P.R. (3d) 469 (T.M.O.B.) at 475];
• s. 12(1)(d) - the date of my decision [see Park Avenue Furniture Corporation v. Wickes/Simmons Bedding Ltd. and The Registrar of Trade Marks (1991), 37 C.P.R. (3d) 413 (F.C.A.)];
• s. 16(3) - the filing date of the application [see s. 16(3)];
• non-distinctiveness - the date of filing of the opposition [see Metro-Goldwyn-Mayer Inc. v. Stargate Connections Inc. (2004), 34 C.P.R. (4th) 317 (F.C.T.D.)].
[11] I will analyse the grounds of opposition with respect to the evidence of record without necessarily respecting the order in which they were raised in the statement of opposition.
Ground based upon s. 38(2)(c) and s. 16(3)(a)
[12] The Opponent alleges that pursuant to s. 38(2)(c) of the Act, the Applicant is not the person entitled to registration of the Mark under s. 16(3)(a) since, as of the date that the Applicant filed its application on July 13, 2004, the trade-mark was confusing with the trade-marks which had been used or made known in Canada by the Opponent namely LAVO DELICAT, LAVO +, LAVO EXTRA, LAVO (dessin), LAVO II and LAVO in association with various types of bleach and household products.
[13] In order for this ground of opposition to be considered at all, the Opponent must meet an initial evidentiary burden establishing that the relied upon marks were used prior to the filing date of the application (July 13, 2004) and were not abandoned at the date of advertisement of the applicant’s application (March 30, 2005). To this end the Opponent filed the statutory declaration of Pierre Allard together with Exhibits PA-1 to PA-4. Mr. Allard states that he is the Vice-President and Administrator of the Opponent. He further explains that he had previously been Vice-President and Administrator of Goupe Lavo Inc. (the Opponent’s predecessor-in-title) and as such has access to the corporate information of these companies.
[14] At the hearing, counsel for the Opponent conceded that use has only been established with regard to the trade-marks LAVO and LAVO (dessin) as shown below:
[15] Mr. Allard states at paragraph 11 of his statutory declaration, that the mark LAVO was first used in Canada in 1925 in association with bleach. Exhibit PA-1 appended to Mr. Allard’s statutory declaration features labels and photographs of labelled containers, all of which bear the mark LAVO in association with concentrated bleach for commercial purposes or with sodium hypochlorite for industrial, institutional and swimming pool use. Mr. Allard provides a chart showing volumes of containers sold of these products, omitting actual sales figures for reasons of confidentiality. He attests to 827,411 volumes of containers being sold in Canada for the year 2003; 861,462 volumes for the year 2004 and; 861,861 in 2005. The evidence in this regard is somewhat vague given that the volumes of containers are not specified in terms of measurement, such as litres.
[16] Mr. Allard further provides 11 sample invoices, five of which are prior to the material date (July 13, 2004) reflecting transactions of products identified with the trade-mark LAVO.
[17] The Applicant submits that the labels and invoices do not constitute use of the trade-mark LAVO, because it is used in combination with either the number 6 or 12. Moreover the Applicant contends that the Opponent failed to evidence use of the mark LAVO (dessin).
[18] The labels and invoices do show use of the trade-mark LAVO in block letters or upper case letters, followed by either the number 6 or 12. Nevertheless, numerals are typically not considered to be strong components of trade-marks [Alcan Aluminium Ltd. v. Oakwood Lumber & Millwork Co. (1994) 58 C.P.R. (3d) 552]. I am therefore of the opinion that, as a matter of first impression, the public would perceive the mark as being use of the trade-mark LAVO per se [Nightingale Interloc Ltd. v. Prodesign Ltd. (1984) 2 C.P.R. (3d) 535].
[19] In turning to the Applicant’s second
argument, although the Opponent has not shown use of the mark LAVO (dessin)
i.e. , I consider that use shown of the mark LAVO nominal constitutes use of LAVO
(dessin), particularly in view of the minor variations between the marks. [Nightingale
Interloc Ltd. v. Prodesign Ltd. (1984) 2 C.P.R. (3d) 535]. I am
therefore satisfied that the Opponent has shown use, prior to the material
date, of both the LAVO and LAVO (dessin) trade-marks in
association with concentrated bleach for commercial purposes or with sodium
hypochlorite for industrial, institutional and swimming pool use.
[20] The Opponent having met its evidentiary burden regarding this ground of opposition, the legal onus therefore shifts to the Applicant to show, on a balance of probabilities, that there would be no reasonable likelihood of confusion, within the meaning of Section 6(2) of the Act, between the Mark and the Opponent's marks. The presence of an onus on the Applicant means that if a determinate conclusion cannot be reached once all the evidence is in, then the issue must be decided against the Applicant [John Labatt Ltd. v. Molson Cos. (1990), 30 C.P.R. (3d) 293 (F.C.T.D.)].
the test for confusion
[21] The test for confusion is one of first impression and imperfect recollection. Section 6(2) of the Act indicates that use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the wares associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares are of the same general class. In applying the test for confusion, the Registrar must have regard to all the surrounding circumstances, including those specifically enumerated in s. 6(5) of the Act, namely: a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known; b) the length of time each has been in use; c) the nature of the wares or business; d) the nature of the trade; and e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them. These enumerated factors need not be attributed equal weight [Mattel, Inc. v. 3894207 Canada Inc. (2006), 49 C.P.R. (4th) 321 S.C.C. and Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée et al. (2006), 49 C.P.R. (4th) 401 S.C.C.].
[22] The Supreme Court of Canada in Mattel, supra discussed the appropriate process for assessing the perspective from which the likelihood of a “mistaken inference” is to be measured. It must be considered from the point of view of the average hurried consumer having an imperfect recollection of the Opponent's marks who might encounter the Mark in association with the Applicant's wares in the marketplace. If this consumer would be deceived about the origin of the wares, then the statutory test is met. In other words the marks would be considered confusing.
[23] The Applicant argues that this test should be assessed from the perspective of the average bilingual Canadian consumer only, citing in support of this proposition the Supreme Court of Canada in Mattel, supra. On the other hand, the Opponent submits that the test is a three-prong test, wherein the mark must be assessed from the point of view of the average Anglophone consumer, the average Francophone consumer and the average bilingual consumer. Should confusion arise within any of these groups, the trade-marks at issue are confusing, citing the Federal Court of Appeal in Pierre Fabre Médicament v. SmithKline Beecham Corp. (2001) 11 C.P.R. (4th) 1 (F.C.A).
[24] I agree with the Opponent’s interpretation. The specific issue to
be decided by the Federal Court of Appeal in 2001 in Pierre Fabre
Médicament, supra, was “to what degree should the opinion of the average
bilingual consumer be considered in determining whether there is a likelihood
of confusion between two trade-marks within the meaning of
the Trade-marks Act”.
The Federal Court of Appeal
conducted an in depth analysis of the bilingual nature of the test. In my
view, it is this three-prong test, which is applicable. I consider it to be a
pragmatic approach to the reality of the Canadian market and is not
incompatible with the Mattel decision in which the Supreme Court of
Canada held that “the mythical consumer “in appropriate markets” is
functionally bilingual” (emphasis added). The following excerpt from Fox on Canadian Law of Trade-Marks and Unfair Competition, Fourth
edition, p.8-17 accurately delineates the assessment to be made:
It is important to appreciate that the bilingual version test is but a third linguistic prong to consider. First and foremost, the court must determine whether there is a likelihood of confusion with either English or French speaking consumers; Choice Hotels International Inc. v. Hotels Confortel Inc. (1996), 67 C.P.R. (3d) 340 (F.C. T.D.); affirmed 2000 CarswellNat 3028, 2000 CarswellNat 3489 (F.C.A.), the court may also consider whether the average bilingual consumer would also likely be confused. If there is a likelihood of confusion amongst any of these linguistic groups, there is a likelihood of confusion. Decisions which stated that only the average bilingual consumer is relevant to the issue, as exemplified by Vins La Salle Inc. c. Vignobles Chantecler Ltée., (1985), 6 C.P.R. (3d) 533 (T.M.O.B.) were held by the Federal Court of Appeal to be wrong (SmithKline Beecham Corp. v. Pierre Fabre Médicament (2001), 11 C.P.R. (4th) 1 (F.C.A). The approach can simply be stated as follows: assess the question of confusion in the context of unilingual francophones, unilingual anglophones and bilingual persons and then, if the two trade-marks are confusing to the average member of any of these groups, conclude that the trade-marks are confusing.
[25] It is therefore with these general principles in
mind that I shall assess all of the surrounding circumstances.
s. 6(5)(a) - inherent distinctiveness of the trade-marks and the extent to which each trade-mark has become known
[26] From the perspective of the average Anglophone consumer, I am of the view that the Opponent’s mark would be viewed as coined word, thus inherently distinctive. As for the Mark, it is a combination of two words, LAVA and PRO. Both words have dictionary-defined meanings in the English language. The word LAVA meaning “molten rock” is not descriptive of the wares covered in the application, therefore augmenting its inherent distinctiveness. The word PRO is defined to mean “professional”, and may convey the idea that the Applicant’s hand soap is intended for professional use. However, the juxtaposition of these two words is not of common parlance, thus increasing the Mark’s overall inherent distinctiveness.
[27] As for the average Francophone consumer, the initial three letters, LAV, of the Mark and the Opponent’s marks, appear to be borrowed from the French verb LAVER which means “to wash”. This might suggest that the wares associated with the trade-marks are used for washing or cleaning, therefore decreasing their inherent distinctiveness.
The word PRO is equally defined in the French language to mean “professional”, and as earlier indicated this may convey the idea that the Applicant’s hand soap is intended for professional use.
[28] The average bilingual consumer could view the marks at issue from either the English and/or French perspectives described above.
[29] A trade-mark’s distinctiveness may increase by evidencing the extent to which it has become known. As of the filing date of the application, the Opponent’s marks have become known to a limited extent in Canada in association with concentrated bleach for commercial purposes and sodium hypochlorite for industrial, institutional and swimming pool use. On the other hand, the Applicant’s application is based on proposed use in Canada, and as the Applicant has elected not to file any evidence of use since the filing of the application, I conclude that the Mark has not become known at all in Canada.
s. 6(5)(b) - the length of time each trade-mark has been in use
[30] The length of time that the trade-marks have been in use favours the Opponent.
s. 6(5)(c) and (d) - the nature of the wares, services or business; the nature of the trade
[31] As for s. 6(5)(c) and (d) it is the Applicant’s statement of wares and the wares as evidenced by the Opponent that govern [Henkel Kommanditgesellschaft auf Aktien v. Super Dragon Import Export Inc. (1986), 12 C.P.R. (3d) 110 (F.C.A.); Mr. Submarine Ltd. v. Amandista Investments Ltd. (1987), 19 C.P.R. (3d) 3 (F.C.A.); Miss Universe Inc. v. Bohna (1994), 58 C.P.R. (3d) 381 (F.C.A.)].
[32] The Applicant’s application covers hand soap, a product obviously used on the skin. Whereas the Opponent’s evidence establishes use of its marks in association with concentrated bleach for commercial purposes and sodium hypochlorite for industrial, institutional and swimming pool use, products specifically not to be used in contact with the skin. This is evidenced by the reading matter on the labels produced as Exhibit PA-1 appended to Mr. Allard’s statutory declaration where such language as “Warning Corrosive” or “Caution Irritant” can be found, along with precautions to “avoid contact with skin”. Clearly the Opponent’s products are specifically intended not to be used in any way similar to hand soap. I therefore consider the nature of the wares differ significantly.
[33] As for the channels of trade, the Opponent’s wares are destined for, and sold to, commercial, institutional and industrial markets. Not for household use. This is confirmed by the statement at paragraph 12 of Mr. Allard’s statutory declaration and corroborated by the labels included in Exhibit PA-1, which clearly indicate “Not for retail sale”.
[34] The Opponent further submits that the trade-mark LAVO is also used on household cleaning products sold in department stores, grocery stores and pharmacies and refers to Exhibit PA-3 in support of this claim. The Opponent further claims use of its trade-mark as shown on its web site.
[35] The labels attached, en liasse, as Exhibit PA-3 feature trade-marks other than the LAVO marks, such as LA PARISIENNE, for fabric softeners and detergents, HERTEL for all purpose cleaners, OLD DUTCH for cleansing powder, to name a few. These other marks are displayed prominently on the front of the labels.
[36] The Opponent argues that these labels also include use of the trade-mark LAVO inside an oval design. However upon review of the evidence I cannot agree.
[37] With respect to wares, use of a trade-mark is defined in s. 4(1) and s. 4(3) of the Act. In the particular circumstances of this case, only s. 4(1) is applicable and defines use as follows:
4(1) A trade-mark is deemed to be used in association with wares if, at the time of transfer of the property in or possession of the wares, in the normal course of trade, the trade-mark is marked on the wares themselves or on the packages in which they are distributed or it is in any other manner so associated with the wares that notice of the association is then given to the person to whom the property or possession is transferred.
[38] Section 2 of the Act defines a trade-mark as follows:
2(a) a mark that is used by a person for the purpose of distinguishing or so as to distinguish wares or services manufactured, sold, leased, hired or performed by him from those manufactured, sold, leased, hired or performed by others.
[39] Bearing these definitions in mind, a trade-mark will be deemed used if it is marked on the wares or their packaging for the purpose of distinguishing or so as to distinguish the wares from those of others.
[40] In turning to the labels in Exhibit PA-3, the word LAVO inside an oval is always found on the back of the labels, in a particularly small font. It is shown either adjacent to a domain name or to the trade-name Lavo Inc. It is typically found next to the corporate address and telephone number, below a commercial bar code. Although I agree with the Opponent that several trade-marks may be used concurrently, I do not consider that use of LAVO inside an oval in these circumstances, constitutes use as a trade-mark for the purpose of distinguishing its wares from those of others. It is more likely to be considered use as a trade-name, indicating ownership.
[41] As for Exhibit PA-4, I have not given much weight to the pages of this web site purporting to show use of the Opponent’s marks, as they are dated after the material date.
[42] The Opponent has therefore only established use of its trade-marks LAVO in association with concentrated bleach for commercial purposes and sodium hypochlorite for industrial, institutional and swimming pool use.
[43] The channels of trade associated with the wares of the parties must be determined on the basis of the wares covered in the Applicant's application and the wares as evidenced by the Opponent. Although the Applicant has not evidenced use of the nature of its trade, I do not consider that it must be assumed that the channels of trade associated with the Mark would be the same trade channels as are associated with the Opponent’s. I consider that hand soap might well be sold in grocery stores and supermarkets, pharmacies or specialized boutiques. On the other hand, the evidence shows the Opponent’s wares reach very different channels, namely institutional and industrial markets. I am therefore of the view that the channels of trade are dissimilar.
s. 6(5)(e) - the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested by them
[44] Considered in their totality, the marks at issue are sounded differently. The marks are also different in appearance; the Opponent’s marks consisting of one word, whereas the Mark consists of two.
[45] The only similarity resides in the first three letters. In terms of the ideas suggested, in view of the significance of these letters in the French language, I consider that neither party would be entitled to a monopoly in respect of such an idea and that small differences in the marks will serve to distinguish them:
It is well established that trade-marks containing words which are suggestive of the wares or services offered by the owner are considered to be weak marks and consequently are afforded a minimal level of protection. In such cases, even small differences between the marks will be sufficient to diminish the likelihood of confusion [ Man & His Home Ltd. v. Mansoor Electrics Ltd. (1999), 87 C.P.R. (3d) 218 (F.C.T.D.)]
[46] In terms of the ideas suggested in the English language, the Opponent’s mark is a coined word with no apparent meaning. As for the Mark it is comprised of the word LAVA meaning “molten rock” and PRO commonly used to mean “professional”. Thus the marks from the perspective of the Anglophone consumer, share no resemblance in terms of the ideas suggested by them.
[47] The ideas suggested by the marks to the average bilingual consumer could encompass both of the above Francophone and Anglophone perspectives.
Surrounding circumstance
[48] The Opponent relies on a previous decision rendered by the Registrar in Groupe Lavo Inc. v. Proctor & Gamble Inc. (1990), 32 C.P.R. (3d) 533 and submits this decision should be followed. However, the trade-marks at issue in Groupe Lavo Inc., supra, were different than the marks opposed in the present case, as were the wares and the channels of trade. Furthermore, oppositions must be determined on the merits of each case and based on the evidence of record. Accordingly, I respectfully distinguish the 1990 decision from the present case.
conclusion re likelihood of confusion
[49] Give my analysis of the factors listed in s. 6(5) of the Act, and having considered all of the surrounding circumstances with a view to balance the right of the trade-mark owner to the exclusive use of his /her mark and the right of others in the marketplace to compete freely, I find that there is no reasonable likelihood of confusion between the marks at issue, whether from the perspective of the average English, French or bilingual speaking consumer.
[50] Accordingly, the s. 16(3)(a) ground is unsuccessful.
Ground based upon s. 38(2)(c) and s. 16(3)(c)
[51] The Opponent asserts that there has been use of the trade-names Groupe Lavo Inc., Lavo Inc. and Lavo, prior July 13, 2004 and as such the Applicant is not entitled to registration of the Mark because it is confusing with the Opponent’s trade-names.
[52] In order for this ground of opposition to be considered, the Opponent must first meet an initial evidentiary burden establishing that its trade-names were used prior to the filing date of the Applicant’s application (July 13, 2004) and were not abandoned at the date of advertisement (March 30, 2005).
[53] I find the Opponent has only met its burden with respect to the trade-names, Lavo Inc. and Lavo. The labels included in Exhibit PA-1 and the invoices appended to Exhibit PA-2 support these findings. As for the trade-name Groupe Lavo Inc. the Opponent claims it was used on products featuring other trade-marks prior to the mergers of August 2006. Although labels have been filed into evidence showing use of the trade-name Groupe Lavo Inc. (Exhibit PA-3) in association with these other trade-marks, Mr. Allard’s statutory declaration fails to provide any indication as to the timing or breakdown of sales of these products, if any. The Opponent has therefore failed to established use of the trade-name Groupe Lavo Inc. as of the material date.
[54] Although the Opponent has shown use of its trade-names Lavo Inc. and Lavo, my findings with respect to confusion regarding the s. 16(3)(a) ground are for the most part applicable with respect to this ground of opposition
[55] Accordingly, this ground is unsuccessful.
Ground based upon s. 38(2)(b) and s. 12(1)(d)
[56] Pursuant to s. 38(2)(b) the Opponent alleges that the Mark is not registrable in accordance with s. 12(1)(d) of the Act because it is confusing with six of its registered marks. During the course of the hearing the Opponent conceded that two of its marks are currently expunged and consequently only relies on four of its registrations namely:
1) LAVO nominal TMA 193,057 covering Eau de javelle concentrée.
2) LAVO (dessin) TMA 261,040 for (1) Eau de javel. (2) Assouplisseur de tissus, une préparation anti-statique, détersif à vaisselle, nettoyeur à vitres, sacs à ordures, sacs à déchets, sacs tout usage, détergent à vaisselle, savon de toilette, détergent liquide, nettoyeur tout usage, détersif pour le lavage, rôtissoire géante, assouplisseur liquide pour tissus, blanchisseur, ustensiles ménagers pour préparer, cuire, servir, approvisionner et congeler les aliments et bavettes de cuisinières.
3) LAVO II TMA235,253 covering all fabric bleaching agent
4) LAVO DELICAT TMA508,501 for Eau de javel sans javel, détergents.
[57] I consider the most relevant mark for the purpose of assessing this ground is LAVO (dessin) 261,040 particularly in view of the overlapping wares “savon de toilette”.
[58] With the exception of “eau de javelle”, the Opponent has not evidenced use of the mark in association with the remaining wares for which it is registered. In the absence of evidence supporting use of the mark, the registration can establish no more that “de minimis” use and cannot give rise to an inference of significant or continuing use of the mark. It follows that the Opponent’s mark has not been known to any extent in Canada in association with the registered wares. Although the Applicant’s wares “hand soap” could overlap with the Opponent’s “savon de toilette”, I am of the view that there would be no likelihood of confusion between the marks at issue. Firstly, because from the point of view of the French-speaking consumer, the marks are suggestive of the wares and as such would only be afforded minimal protection and small differences will serve to distinguish them.
[59] As for the average English-speaking consumer, each mark would be seen as inherently distinctive. One being a coined word, the other consisting of two English words that have recognized meanings and when combined render the Mark enigmatic.
[60] As previously discussed, I am of the view that the average bilingual consumer could view the marks from either the English and/or French perspectives described above.
[61] Based on my above analysis, I find confusion between the marks at issue unlikely.
[62] As for the trade-mark LAVO II for bleach, the addition of the Roman numeral II would not detract from the first portion LAVO. As earlier stated, numerals are typically not considered to be strong components of trade-marks. Likewise, considering the trade-mark LAVO DELICAT, I find the word DELICAT, which was disclaimed, descriptive of the wares and would not strengthen the mark. My findings with respect to the mark LAVO are therefore equally applicable with respect to these marks.
[63] This ground is therefore unsuccessful.
Ground based upon s. 38(2)(d) and s. 2
[64] The Opponent alleges that pursuant to s. 38(2)(d) the Mark is not adapted to distinguish the wares of the Applicant from the wares and business of the Opponent, according to the meaning of s. 2, in view of the confusion created with the trade-marks and trade-names of the Opponent.
[65] For the reasons discussed above, as I am of the opinion that there is no likelihood of confusion between the Mark and the Opponents trade-marks and trade-names, it follows that the Mark is capable of distinguishing the Applicant’s wares from the wares of the Opponent’s.
[66] This ground is also unsuccessful.
Ground based upon s. 38(2)(a) and s. 30(i)
[67] Pursuant to s. 38(2)(a) the Opponent alleges that the application does not satisfy the requirements of s. 30 of the Act, because the Applicant could not have been satisfied of its right to register the Mark since it was aware of the Opponent’s rights, which are set out in the statement of opposition.
[68] Where an applicant has provided the statement required by s. 30(i), a s. 30(i) ground should only succeed in exceptional cases such as where there is evidence of bad faith on the part of the applicant [Sapodilla Co. Ltd. v. Bristol-Myers Co. (1974), 15 C.P.R. (2d) 152 (T.M.O.B.) at 155]. As this is not such a case, I am dismissing this ground of opposition.
Disposition
[69] Having been delegated authority by the Registrar of Trade-marks by virtue of s. 63(3) of the Act, I reject the opposition pursuant to s. 38(8).
DATED AT GATINEAU, QUÉBEC, THIS 27th DAY OF JUNE 2009.
Member