IN THE MATTER OF AN OPPOSITION
by The Procter & Gamble Company
to application No. 603,473 for the
trade-mark LUV N' CARE & Design
filed by Luv N' Care, Inc.
On March 24, 1988, the applicant, Luv N' Care, Inc., filed an application to register the trade-mark LUV N' CARE & Design (illustrated below) based on use in Canada with the following wares:
wearing apparel, namely, bibs, sleepers, infant shirts,
infant shorts, underwear, diapers, bonnets, playsets,
robes; footwear, namely, booties; accessories, namely,
receiving blankets, bath blankets, thermal blankets,
baby blankets, bassinette sheets, layette sets, apron bibs,
stuffed animals and gift sets, consisting of various
combinations of the foregoing wearing apparel,
footwear and accessories.
The application was advertised for opposition purposes on April 19, 1989.
The opponent, The Procter & Gamble Company, filed a statement of opposition on May 4, 1989, a copy of which was forwarded to the applicant on May 26, 1989. The opponent requested leave to amend its statement of opposition on November 26, 1990 and leave was granted pursuant to Rule 42 of the Trade-marks Regulations on January 14, 1991. The grounds of opposition include one based on Section 12(1)(d) of the Trade-marks Act, namely that the applied for trade-mark is not registrable because it is confusing with a number of registered trade-marks of the opponent including the following two registered marks:
Trade-mark Reg. No. Wares
LUVS 228,815 disposable diapers
332,255 product promotional items,
namely children's track
suits, socks and sneakers
The applicant filed and served a counter statement on September 26, 1989. The applicant requested leave to amend its counter statement on December 3, 1990 and leave was granted pursuant to Rule 42 on March 18, 1991.
As its evidence, the opponent filed the affidavits of Rick J. Lovell and Roxanne L. Buckle. The applicant did not file evidence. Both parties filed a written argument but no oral hearing was conducted.
As for the ground of opposition based on registrations Nos. 228,815 and 332,255, the material time for considering the circumstances respecting the issue of confusion with a registered trade-mark is the date of my decision: see the decision in Conde Nast Publications Inc. v. Canadian Federation of Independent Grocers (1991), 37 C.P.R.(3d) 538 at 541-542 (T.M.O.B.). Furthermore, the onus or legal burden is on the applicant to show no reasonable likelihood of confusion between the marks at issue. 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 applicant's trade-mark is inherently distinctive although it is not inherently strong. Its mark is equivalent to the words "love and care" and is therefore somewhat suggestive of the infant-related wares for which registration is sought. The applicant did not file evidence and I must therefore conclude that its trade-mark has not become known at all in Canada.
The opponent's two trade-marks are also inherently distinctive although they, too, are not inherently strong. The opponent's trade-marks are dominated by the word LUVS which is equivalent to the word "loves." The marks are therefore somewhat suggestive or laudatory of the associated wares. However, the Buckle affidavit establishes that the opponent's former registered user Procter & Gamble Inc. effected significant sales of LUVS disposable diapers in Canada for a number of years. According to Ms. Buckle, her company (Procter & Gamble Inc.) also spent considerable sums on advertising and promoting that mark in Canada. Ms. Buckle also referred to advertising by her company's parent company (i.e. - the opponent) in the United States and its purported spillover effect in Canada. However, Ms. Buckle's statements in this regard are hearsay in that she is not employed by the opponent, she does not indicate if she had access to the opponent's records, she does not establish if the opponent placed ads and she does not establish if any American magazine or television ads were viewed in Canada. Thus, her statements about the purported spillover effect of the opponent's ads cannot be given any weight. Nevertheless, given the extensive sales and advertising in Canada by Procter & Gamble Inc., I can conclude that the opponent's trade-mark LUVS has become very well known.
The length of time the marks have been in use favors the opponent. Some of the wares of the parties are related. Registration No. 228,815 covers disposable diapers and the applicant's statement of wares includes diapers. Registration No. 332,255 includes items of children's clothing as does the present application. Some of the applicant's wares differ from the opponent's wares but are nevertheless related in that they all comprise wearing apparel or accessories for infants.
In view of the above, it would appear that the trades of the parties would, or could, overlap. In fact, Ms. Buckle states in her affidavit that LUVS diapers are sold in Canada through department stores, grocery stores, drugstores and toy stores. Given the wide distribution network for the opponent's wares, it is almost inevitable that the wares of both parties will, at least in some cases, be sold through the same type of outlet. The Lovell affidavit provides some support for this conclusion. Mr. Lovell purchased a baby bottle sold in association with the trade-mark LUV N' CARE in a Toronto drugstore. Although the applicant did not include such an item in the statement of wares of the present application, it is related to those wares and points to one channel of trade that the applicant has used to date.
The marks at issue bear a fairly high degree of resemblance in all respects. In fact, the first component of the applicant's mark is almost identical to the opponent's registered mark LUVS. That degree of resemblance is underscored by the applicant's own use of its trade-mark LUV N' CARE as evidenced by the packaging for its baby bottle appended to the Lovell affidavit. That packaging includes the applicant's trade-mark but it also includes wording such as "LUV'S Collectibles by LUV N' CARE", "LUV'S Nurser", "LUV'S Nipple" and "LUV'S Collectible Designs." Thus, the applicant's own marketing emphasizes the first component of its mark and heightens the possibility of confusion with the opponent's marks.
As an additional surrounding circumstance, I have considered the opponent's evidence of possible instances of actual confusion between the marks at issue. Ms. Buckle appended copies of letters of complaint from two consumers who apparently purchased the applicant's LUV N' CARE baby bottles and mistakenly thought they were sold by the opponent's former registered user. Although the present application does not include baby bottles, its does include related wares and I consider that the incidents of actual confusion concerning baby bottles suggests that confusion may also be likely respecting the applied for wares.
The opponent submitted that its case is strengthened by the fact that it owns a family or series of trade-marks. However, the opponent failed to establish the existence of any such family.
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 reputation associated with the opponent's trade-mark LUVS, the degree of resemblance between the marks at issue, the similarities between the wares, the potential overlap in the channels of trade and the incidents of actual confusion, I find that the applicant has failed to satisfy the onus on it to show that its trade-mark is not confusing with the opponent's two registered trade-marks. The opponent's ground of opposition pursuant to Section 12(1)(d) of the Act based on those two registrations 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, 1995.
David J. Martin,
Member,
Trade Marks Opposition Board.