IN THE MATTER OF AN OPPOSITION
by Noma Inc. to application No.
599,644 for the trade-mark START
GUARD filed by Trek-Tron Coolers Inc.
On January 25, 1988, the applicant, Trek-Tron Coolers Inc., filed an application to register the trade-mark START GUARD based on proposed use in Canada with the following wares:
coolers; voltage sensitive switches;
and electrical switches.
The application was advertised for opposition purposes on September 14, 1988.
The opponent, Noma Inc., filed a statement of opposition on October 14, 1988, a copy of which was forwarded to the applicant on November 18, 1988. The grounds of opposition include, among others, that the applied for trade-mark is not registrable pursuant to Section 12(1)(d) of the Trade-marks Act because it is confusing with the opponent's trade-mark STARTGUARD registered under No. 216,470 for "block-heater tester extension cord sets."
The applicant filed and served a counter statement. The opponent did not file evidence. The applicant filed the affidavit of Roy Topelko. Both parties filed a written argument but no oral hearing was conducted.
The material time for considering the circumstances respecting the ground of opposition based on Section 12(1)(d) of the Act is the date of my decision: see the opposition decision of today's date in The Conde Nast Publications, Inc. v. The Canadian Federation of Independent Grocers (S.N. 584,296; pages 2-4). Furthermore, the onus or legal burden is on the applicant to show no reasonable likelihood of confusion between the marks of the parties. Finally, in applying the test for confusion set forth in Section 6(2) of the Act, consideration is to be given to all of the surrounding circumstances including those specifically set forth in Section 6(5) of the Act.
The opponent's mark STARTGUARD is inherently distinctive although it is somewhat suggestive of the function of the registered wares. Thus, the opponent's mark is not inherently strong. There being no evidence from the opponent, I must conclude that its mark has not become known at all.
The applicant's mark, too, is not inherently strong since it is suggestive of the possible function of electrical switches and coolers (at least electric coolers). The applicant has evidenced one sale to the United States. Thus, I must conclude that its mark has not become known at all in Canada.
The length of time the marks have been in use is not a material circumstance in the present case. The wares of the parties are different although they are potentially related. As illustrated in the applicant's brochure (Exhibit A to the Topelko affidavit), the applicant's product is essentially a switching circuit used in a portable chest cooler. The cooler can be plugged into a car battery and the switch ensures that the cooler will not drain the battery beyond the starting point. The opponent's wares are also related to the electrical system of a car. Thus, it would seem reasonable to expect the products of both parties to be sold through similar retail outlets. It was therefore incumbent on the applicant to show otherwise and the applicant has not done so.
The marks of the parties are virtually identical in all respects.
In applying the test for confusion, I have considered that it is a matter of first impression and imperfect recollection. In view of my conclusions above, and particularly in view of the potential connection between the wares and trades of the parties and the virtual identity between the marks, I find that the applicant has failed to satisfy the legal burden on it to show that its trade-mark START GUARD is not confusing with the opponent's registered mark STARTGUARD. The ground of opposition based on Section 12(1)(d) of the Act is therefore successful and the remaining grounds need not be considered.
In view of the above, I refuse the applicant's application.
DATED AT HULL, QUEBEC, THIS 31st DAY OF July , 1991.
David J. Martin,
Member,
Trade-marks Opposition Board.