IN THE MATTER OF AN OPPOSITION
by Arrow Manufacturing Incorporated to
application No. 1,195,687 for the trade-mark
ARROW DRESS CASUALS & Design filed by
Cluett, Peabody Canada Inc. and subsequently
assigned to Cluett, Peabody & Co., Inc.
On November 4, 2003, Cluett, Peabody Canada Inc. filed an application to register the trade-mark ARROW DRESS CASUALS & Design (shown below) based on proposed use in Canada for the following wares:
dress shirts, sport shirts, knit shirts, polo shirts, t‑shirts, pants, shorts, jeans, pajamas, neckties, jackets, suits, coats, bath robes, socks, belts, suspenders, sweaters, caps, blouses, jumpers, dresses, skirts.
The application was assigned to Cluett, Peabody & Co., Inc. and was subsequently advertised for opposition purposes on May 11, 2003.
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The opponent, Arrow Manufacturing Incorporated, filed a statement of opposition on June 15, 2005, a copy of which was forwarded to the applicant on July 12, 2005. The first ground of opposition is that the applicant’s application does not conform to the requirement of Section 30(i) of the Trade-marks Act. In this regard, the opponent alleged that the applicant could not have been satisfied that it was entitled to use the applied for trade-mark in Canada “....in view of the longstanding relationship between the original Applicant and the Opponent whereby the parties agreed to co-exist in the Canadian marketplace.”
The second ground of opposition is that the applicant is not the person entitled to registration pursuant to Section 16(3) of the Act because, as of the applicant’s filing date, the applied for trade-mark was confusing with the trade-mark ARROW and the trade-name Arrow Manufacturing Incorporated previously used in Canada by the opponent in association with “....the design, manufacture, distribution and sale of men’s clothing, garments, and related accessories.” The third ground is that the applicant’s trade-mark is not distinctive in view of the opponent’s use of its trade-mark and trade-name.
The applicant filed and served a counter statement. Neither party submitted evidence. Only the applicant filed a written argument and an oral hearing was conducted at which only the applicant was represented.
In accordance with the usual rules of evidence, there is an evidential burden on the opponent to prove the facts inherent in respect of the allegations pertaining to each ground of opposition. The presence of an evidential burden on the opponent with respect to a particular issue means that in order for the issue to be considered at all, there must be sufficient evidence from which it could reasonably be concluded that the facts alleged to support that issue exist: see Joseph E. Seagram & Sons v. Seagram Real Estate Ltd. (1984), 3 C.P.R.(3d) 325 at329‑30 (T.M.O.B.) and John Labatt Ltd. v. Molson Companies Ltd. (1990), 30 C.P.R.(3d) 293 at 297‑300 (F.C.T.D.).
Since the opponent did not submit evidence, it has failed to satisfy its evidential burden respecting each of its grounds of opposition. Thus, each of those grounds is unsuccessful.
In view of the above, and pursuant to the authority delegated to me under Section 63(3) of the Act, I reject the opponent’s opposition.
DATED AT GATINEAU, QUEBEC THIS 3rd DAY OF SEPTEMBER, 2008.
David J. Martin,
Member,
Trade-Marks Opposition Board.