Canadian Intellectual Property Office

THE REGISTRAR OF TRADEMARKS

Citation: 2025 TMOB 112

Date of Decision: 2025-05-22

IN THE MATTER OF AN OPPOSITION

Opponent : Toys “R” Us (Canada) Ltd.

Applicant: Regeena Lifeso

Application : 1,973,406 for Cozy Koala

 

Introduction

[1] Regeena Lifeso applied to register the trademark Cozy Koala (the Mark) on July 1, 2019. Following amendments to the statement of goods, the application covers the goods in Nice Class 16 (Class 16 Goods):

Cl16 Baby books; birthday cards; books; calendars; children's books; children's storybooks; Christmas cards; colouring books; cook books; educational books; greeting cards; greetings cards; invitation cards; picture books; pictures; posters; thank you cards; wall calendars;

as well as the following goods in Nice Class 25 (Class 25 Goods);

Cl25 Caps; casual clothing; hooded pullovers; hooded sweatshirts; jackets; long sleeve pullovers; long sleeve shirts; long-sleeved t-shirts; men's shirts; men's socks; mittens; pants; shirts; short-sleeve shirts; short-sleeved shirts; short-sleeved t-shirts; sleepwear; socks; softball caps; sweaters; sweatshirts; t-shirts; ties; toques; women's shirts; women's socks; all the foregoing excluding baby clothing, baby fashion accessories, children's clothing, children's fashion accessories, maternity clothing and maternity fashion accessories

[2] On August 5, 2022, Toys “R” Us (Canada) Ltd (the Opponent) filed a statement of opposition under section 38 of the Trademarks Act, RSC 1985, c T‑13 (the Act). It relied on the grounds of non-registrability under section 38(2)(b) and 12(1)(d) of the Act, non-entitlement under sections 38(2)(c) and 16, non-distinctiveness under 38(2)(d) and that the applicant was not using and did not intend to use the Mark at the filing date under section 38(2)(e). Support for the non-registrability, non-entitlement and non-distinctive grounds consists of eight registered trademarks (Opponent’s KOALA Registrations) along with four then pending applications which have now issued to registration (Opponent’s KOALA Applications), containing KOALA.

[3] A number of the Opponent’s KOALA Registrations were the subject of successful cancellation proceedings initiated by Ms. Lifeso under section 45 of the Act. This resulted in some goods listed in these registrations being struck. Schedule A sets out the Opponent’s KOALA Registrations as well as the Opponent’s KOALA Applications that have since issued to registration. The schedule also includes the goods currently covered by each registration.

[4] The Opponent relies on the affidavit of Nick Muriella, a vice president with the company. The Applicant relies on the Affidavit in her own name. Only Ms. Lifeso was cross-examined, with the associated transcripts and undertakings filed. Leave to file additional evidence in the form of a second affidavit of Ms. Lifeso was refused. No reply evidence was filed. Both parties filed written representations and both attended an oral hearing.

[5] For the reasons that follow, the Opposition succeeds in part.

Summary of Pertinent Evidence

[6] The evidence of the parties is summarized briefly below and also discussed in the context of the analysis of the grounds of opposition.

Opponent’s Muriella Affidavit

[7] Mr. Muriella attests that the Opponent operates the Toys “R” Us and Babies “R” Us chains of toy and baby stores, which are some of best-known toy and baby stores in Canada [Muriella affidavit, para 3].

[8] Mr. Muriella provides background as to the use of various of the Opponent’s KOALA trademarks stating that the Opponent has, through a predecessor in interest, been using these marks for many years. In support, he attaches a flyer dated 2014 promoting baby and children’s clothing and canvas storage items branded with various KOALA BABY and KOALA KIDS trademarks [Muriella affidavit para 5 and Exhibit A].

[9] The flyer advertises baby and children’s clothing and bedding, featuring the KOALA BABY word and design trademarks associated, in particular, with sleepers, body suits, diaper shirts and canvas storage units “for organizing diapers layettes booties and more”. While the flyer also advertises bedding, these products are advertised in association with various BABIES “R” US trademarks [Muriella affidavit, Exhibit A]. No information has been provided regarding the distribution of this flyer in Canada or sales relating to the goods shown therein.

[10] Mr. Muriella states at paragraph 7 of his affidavit that since July 1, 2019, the Opponent has sold the following items in association with the trademark KOALA BABY:

hats; nursing cushions; nursing scarves; bibs; washcloths; jerseys; burp cloths; towels; onesies; sunglasses; backpacks; sleepers; slippers [rattle booties]; diaper shirts; bodysuits; rash guards; hoodies; joggers; leggings; t-shirts; slouch pants; shorts; sweatshirts; sandals; slip-on shoes; sneakers; pyjamas; pants; blankets; flannel sheets; change pads; bedding sheets; crib sheets;

[11] He also states that the Opponent has sold the following items in association with the trademark KOALA BABY ESSENTIALS:

hats; mittens; booties; crib sheets; change pad covers; terry cloths; terry liners; burp pads and hangers

[12] Additionally, he attests to the Opponent having sold the following items in association with the trademark KOALA MOM:

Maternity t-shirts; maternity tanks; and maternity leggings

Toys “R” Us – Website and Retail Operations

[13] Mr. Muriella attests generally that Canadian sales are made through the Opponent’s toysrus.ca website which receives millions of visits by Canadians each year. He explains that goods are then shipped to customers nationwide. He notes that customers are also able to order products for pick-up at physical stores [Muriella affidavit para 8]. He goes on to state that the Opponent sells a variety of KOALA branded products through the website toysrus.ca [Muriella affidavit para 9]. In the same paragraph, he goes on to substantiate his statements, relying on screenshots of products as they appeared on the Opponent’s website as of the date his affidavit was executed. He attests that these representations are reflective of how the products have appeared since 2020. In this regard, Exhibits B to F show website depictions of a hooded towel and mitt, washcloths, hooded towels, a change pad and change pad cover respectively.

[14] The goods shown in Exhibits B to F do not appear to display the Opponent’s trademarks on themselves or their packaging other than the change pad cover comprising Exhibit F, however, the descriptions reference “Koala Baby”. The products shown are available through one or more options of in-store pick-up, or home delivery. While the other items are seemingly in stock, the change pad cover is shown as unavailable. Although details have not been provided, some of the items are associated with product ratings and reviews, suggesting previous sales. These include the hooded towel, the change pad and the changing pad cover.

[15] Mr. Muriella explains that the Opponent’s Canadian retail operations began in 1984. Today, the Opponent has more than 75 retail stores across the country, in every Province, with visits by millions of Canadians each year. He states that these operations have generated significant goodwill and brand recognition, and Canadians are familiar with the Toys “R” Us brand and stores, especially in respect of “toys, babies (sic) and kids (sic) products”. [Muriella affidavit, para 10]

[16] Mr. Muriella states that a variety of products bearing the Opponent’s KOALA trademarks are sold in its retail stores. He provides photographs of in-store displays, which he says are representative of how products bearing the Opponent’s trademarks are sold [Muriella affidavit, para 11 and Exhibit G]. The quality of photographs is poor, particularly with respect to the visibility of the Opponent’s trademarks on the goods. However, the trademarks KOALA BABY and KOALA BABY ESSENTIALS are present on what are seemingly baby linens in the nature of towels, wash cloths, crib sheets and possibly baby blankets or burp cloths.

Babies “R” Us Website and Retail Operations

[17] Mr. Muriella also attests to the Opponent’s online sales through its babiesrus.ca website, which generally sells products for babies and mothers. He again explains that goods ordered online can be shipped to most Canadian addresses or can be picked up at a retail Babies R Us store. He attests to millions of Canadian visits to the website each year [Muriella affidavit, para 12 ].

[18] Mr. Muriella attests to sales of a variety of products bearing the KOALA trademarks through the site www.babiesrus.ca. He provides screenshots of the products and states that these are representative of how the product pages have appeared since 2020 [Muriella affidavit, para 13]. The product pages include labels and/or descriptions that reference the Opponent’s trademarks as follows:

• Exhibit H, mattress protector bearing the trademarks KOALA BABY/KOALA BABY ESSENTIALS

• Exhibit I, burp cloths described using the trademark KOALA BABY

• Exhibit J, toddler smock type bibs described using the trademark KOALA BABY

• Exhibit K, waterproof liners for cribs or change pads bearing the KOALA BABY/KOALA BABY ESSENTIALS

• Exhibit L, nursing cushion described using the trademark KOALA BABY

• Exhibit M, nursing scarf described using the trademark KOALA BABY

• Exhibit N, crib sheet bearing the trademark KOALA BABY

• Exhibit O, baby blanket described using the trademark KOALA BABY

• Exhibit P, hangers bearing the trademarks KOALA BABY/KOALA BABY ESSENTIALS, with an indication that these are “out of stock”

• Exhibit Q, bodysuits described using the trademark KOALA BABY, with an indication these are “out of stock”

[19] Mr. Muriella explains that the Opponent’s predecessor first opened Babies “R” Us retail stores in Canada in 1997 and today has over 75 retail stores across the country and in every province. He states that these operate inside or adjacent to Toys “R” Us retail stores and claims that this brand, too, has generated significant goodwill and brand recognition. He attests that millions of Canadians visit the Babies R Us retails stores every year [Muriella affidavit, para 14].

[20] Mr. Muriella states that the Opponent sells products bearing the its KOALA trademarks in its Babies “R” Us retail stores including the mattress protectors, burp cloths, bibs, liners, nursing cushions, nursing scarves, crib sheets, baby blankets, hangers and body suits shown in Exhibits H to Q. [Muriella affidavit, para 15]. He says that the photos shown in Exhibit F are representative of product displays related to these products [Muriella affidavit, para 15]. However, Exhibit F is in fact a depiction of the change pad cover referenced above in respect of products available at the Opponent’s website, and it seems likely Mr. Muriella intended to refer to Exhibit G, which does show product displays, albeit with few legible appearances of the Opponent’s trademarks.

[21] Mr. Muriella’s evidence is perplexing in that he refers, in paragraph 16, to a “table below” setting out relevant sales information regarding products bearing the Opponent’s KOALA trademarks, yet no table exists. The Opponent’s agent, when asked at the hearing, confirmed the table was indeed not in evidence.

[22] Mr. Muriella attests to receipt of reports which indicate annual sales of more than 200,000 units of products bearing the Koala trademarks with sales of more than $4,000,000 for each year between 2019 and 2022 [Muriella affidavit, para 16]. That said, he does not indicate the magnitude of sales for particular KOALA trademark branded products.

[23] Mr. Muriella states that he has conducted internet searches and was unable to find use by the Applicant of the Mark [Muriella affidavit, para 7].

Applicant’s Lifeso Affidavit

[24] Ms. Lifeso identifies herself as having applied for the trademark, which is the subject of this proceeding and that she is proposing to use the Mark in association with a wide array printed materials and clothing [Lifeso affidavit, paras 1 to 3].

[25] She explains that the Mark is the name of a character she created, supporting this statement with pencil drawings from October 2018 [Lifeso affidavit, paras 4 and 5]. This, she attests, was followed by the evolution of ideas for baby or children’s books, from February 2019. She attaches samples of her notes pertaining to books about Cozy Koala and draft stories [Lifeso affidavit, paras 6 to 8 and Exhibits B, C and D].

[26] Ms. Lifeso also details her publishing plans, acquisition of the domain name www.cozykoala.ca, and efforts to advance content development [Lifeso affidavit, paras 9 to 16 and Exhibits E to L].

[27] Ms. Lifeso explains that she plans to sell goods through her website and through online marketplaces for designers, including one platform known as Zazzle, and companies that sell printing services for physically producing goods such as calendars and colouring books [Lifeso affidavit, paras 17 and 18 and Exhibit M].

[28] Ms. Lifeso attests to goods having been available for sale since February 2023 and supports the statement with screen shots of Zazzle webpages, as of May 3, 2023, showing a variety of clothing including baby clothes, watches, bags, magnets, luggage tags, baby blankets, paper products such as cards for sale [Lifeso affidavit, para 20 and Exhibit N]

[29] Ms. Lifeso explains that she was unable to find books, magazines or clothing associated with “cozy koala” [Lifeso affidavit, paras 21 to 28 and Exhibits O to U].

[30] She also attests to being unable to find sales, by the Opponent, of Class 16 Goods or book sales by the Opponent associated with any of its Koala trademarks [Lifeso affidavit, paras 30 and 31]. She also lists Class 25 Goods associated with the Opponent’s KOALA Trademarks, which she could not find as offered by the Opponent [Lifeso affidavit, para 32]. She then provides charts relating to her findings of searches involving the Opponent’s Koala Trademarks and associated goods [Lifeso affidavit paras 33 and 34 and Exhibits V, W and X].

[31] Ms. Lifeso states that as of the date of her investigation, namely May 28, 2023, only bibs were listed in association with the Opponent’s Koala trademarks at the Opponent’s www.Toysrus.ca website and notes that this is not a good listed in her Application [Lifeso affidavit, para 35 and Exhibit Y].

[32] Ms. Lifeso indicates that her search of the Opponent’s website shows only KOALA BABY listed as a brand as of May 28, 2023, and attaches search results [Lifeso affidavit, para 36 and Exhibit Z].

[33] Ms. Lifeso was cross-examined. Relevant facts relating to the cross-examination include:

• She explains that while she has not sold goods through her website at cozykoala.ca, the site links to the third-party Zazzle platform where she has sold products.

• First sales of products through the Zazzle platform were in February 2023 [see undertaking for invoices]. These included sales of mugs, a tote and a sweater were to family members.

• She stated that the platform Zazzle manufactured her goods, that she did not have communication with the manufacturer, that she did not provide standards, requirements or specifications regarding the goods but that she inspected two products after they had been sold, one of which had been received by a family member.

• She confirmed that she had not yet created designs for goods such as calendars, posters and books.

• She conceded that both she and the Opponent sell or intend to sell their products online.

Evidential Burden and Legal Onus

[34] There is an initial evidential burden on the Opponent to adduce sufficient admissible evidence from which the existence of facts alleged to support each ground of opposition could reasonably be concluded. Once the Opponent has met its evidential burden, the Applicant bears the legal onus of establishing, on a balance of probabilities, that the Application complies with the requirements of the Act and the relied upon grounds of opposition do not prevent registration of the Mark. [John Labatt Ltd v Molson Companies Ltd (1990) 30 CPR (3d) 293 (FCTD); Dion Neckwear Ltd v Christian Dior, SA et al, 2002 FCA 29, 20 CPR (4^th) 155]. If a determinate conclusion cannot be reached in favour of the Applicant following consideration of all evidence, then the issue must be decided against the Applicant.

Analysis and Reasons

Non-Registrability Ground

[35] The material date in respect of the non-registrability ground of opposition raised pursuant to sections 38(2)(b) and 12(1)(d) of the Act is the date of my decision [Park Avenue Furniture Corporation v Wickes/Simmons Bedding Ltd and The Registrar of Trade Marks (1991), 37 CPR (3d) 413 (FCA)].

[36] The Opponent pleads that the Mark is not registrable as it is confusing with its KOALA Registrations (listed as the first eight entries in Schedule A).

[37] The Opponent did not seek leave to amend the statement of opposition to include the four previously applications and these will therefore not be considered in respect of the non-registrability ground. Accounting for the additional registration that was subsequently expunged, support for the non-registrability ground will be restricted to the seven remaining registrations originally identified in the statement of opposition.

[38] In addition, I note that during the course of this opposition proceeding, several of the registrations relied upon by the Opponent were subjected to cancellation proceedings pursuant to section 45 of the Act. The outcome was a restriction of the goods in respect of several of the Opponent’s Registrations. Schedule A reflects the current scope of the Opponent’s Registrations.

[39] I have exercised my discretion to check the Register and confirm that the Opponent’s KOALA Registrations remain extant, aside from registration No. TMA1,030,833 for the trademark KOALA BLUES, which has now been expunged [see Quaker Oats Co Ltd of Canada v Menu Foods Ltd (1986), 11 CPR (3d) 410 (TMOB)]. The Opponent has, therefore, met its initial evidential burden concerning this ground of opposition. Consequently, the Applicant bears the legal onus of demonstrating on a balance of probabilities that there is no reasonable likelihood of confusion between the Mark and any of the Opponent's KOALA Registrations.

[40] I will focus my assessment primarily on the likelihood of confusion between the Mark and the Opponent’s KOALA BABY word marks, namely registration Nos. TMA703,964 and TMA 1,029,177 (KOALA BABY Trademark). The Opponent’s case is strongest concerning its KOALA BABY Trademark. If the Opponent is not successful in relying on these registrations, then it will not succeed relying on its other registered trademarks. The registrations associated with the KOALA BABY Trademark collectively cover the following goods (Registered Goods):

Pillows; Bedding and bedding sets, namely crib sheets, crib blankets, cradle sheets, port-a-crib sheets, dust ruffles, bassinet sheets, and receiving blankets; Clothing namely baby layette; Mobiles and musical mobiles; Diaper Bags; Totes; Quilts, Waterproof Bedding, Burp Cloths, Multi Use Pads, Sheet Savers, Pad Liners, Pad Covers, Contour Changing Pads, Bassinet Pads, Porta Pads and Cradle Pads, Wash Cloths, towels, namely bath towels cloth towels, Wash Mitts, Bath Swaddles; Twin and Full Bedding Sets, Crib Bedding Sets, Receiving Blankets, Security Blankets, Swaddles and Fashion Blankets, Crib Sheets, Bassinet Sheets, Porta Sheets and Cradle Sheets; Robes; Bibs.

Confusion Analysis

[41] The test for confusion is established under section 6(2) of the Act which stipulates that the use of one trademark causes confusion with another if the use of both trademarks in the same area would be likely to lead to the inference that the goods or services associated with those trademarks are manufactured, sold, leased, hired or performed by the same person whether or not the goods or services are of the same general class or appear in the same class of the Nice Classification.

[42] When assessing the likelihood of confusion, the Registrar must have regard to all the surrounding circumstances, including those specifically enumerated in section 6(5) of the Act:

• the inherent distinctiveness of the trademarks and the extent to which they have become known;

• the length of time each has been in use;

• the nature of the goods, services or business;

• the nature of the trade; and

• the degree of resemblance between the trademarks including in appearance or sound or in the ideas suggested by them.

[43] These enumerated factors are not exhaustive, and it is appropriate to give different weight to each circumstance in a context-specific assessment [Mattel, Inc v 3894207 Canada Inc, 2006 SCC 22 at para 54, Veuve Cliquot Ponsardin v Boutiques Cliquot Ltée, 2006 SCC 23 at para 21 (Veuve Cliquot)].

[44] Confusion is assessed as a matter of first impression in the mind of a casual consumer, somewhat in a hurry, who sees the applicant’s mark at a time when they have no more than an imperfect recollection of the opponent’s trademark and who does not pause to give the matter detailed consideration, or examine closely the similarities and difference between trademarks [Veuve Cliquot at para 20].

Inherent Distinctiveness and Extent Known

[45] This factor involves a consideration of the combined inherent and acquired distinctiveness of the parties’ trademarks.

[46] The inherent distinctiveness of a trademark refers to its originality. Trademarks consisting wholly, or in part, of words that are descriptive of the associated goods or services attract a more limited scope of protection than does an invented, unique, or non-descriptive word or an original design [General Motors Corp v Bellows, (1949) SCR 678, 1949 CanLII 47 (SCC), and Fairmont Resort Properties Ltd v Fairmont Management LP, 2008 FC 876].

[47] As Justice Bédard noted in Philip Morris Products SA v Imperial Tobacco Canada Limited, 2014 FC 1237, citing Apotex Inc v Canada [Registrar of Trademarks], 2010 FCA 31, whether a trademark is distinctive is a question of fact that is determined by the message that it conveys to the casual consumer of the goods or services in question when the trademark is considered in its entirety and as a matter of first impression.

[48] The distinctiveness of a trademark can be increased through its use and promotion in Canada [see Sarah Coventry Inc v Abrahamian (1984), 1 CPR (3d) 238 (FCTD); GSW Ltd v Great West Steel Industries Ltd (1975), 22 CPR (2d) 154 (FCTD)].

[49] The Opponent admits that the inherent distinctiveness of its trademarks is no greater than that of the Mark. It focuses its arguments pertaining to this factor on the acquired distinctiveness of its trademarks.

[50] The Applicant argues that the Mark is inherently distinctive, relying on search results to support her claim that the combination of COZY and KOALA is distinctive.

[51] The Registrar can take judicial notice of dictionary definitions [Tradall SA v Devil’s Martini Inc, 2011 TMOB 65 at para 29]. I note the term “koala” is defined in the Canadian Oxford Dictionary (2ed) as “an Australian bearlike marsupial having thick grey fur and feeding on eucalyptus leaves”. The term is not intrinsically related to either the Opponent’s or the Applicant’s goods. At best, the term is mildly suggestive of children or babies in that marsupials carry their young. Owing to the presence of the term KOALA, the respective trademarks therefore have some inherent distinctiveness. However, considering the trademarks in their entirety, the Opponent’s inclusion of the other term, BABY, merely describes that the Opponent’s goods are intended for babies.

[52] In terms of the term “cozy”, the Canadian Oxford Dictionary (2ed) defines this as:

cozy

[also cosy] adjective

1. comfortable, warm, or snug: a cozy quilt.

2. intimate and friendly: a cozy restaurant.

3. beneficial or opportune, esp. for insidious purposes: a cozy contract.

4. derogatory complacent: cozy liberal pieties.

noun [pl. -ies] a cover to keep something hot, esp. a teapot or a boiled egg.

[53] The term “cozy” is therefore, at best, suggestive of a feature of the some of the Goods, such as sweaters, in that they might confer comfort and warmth or render the wearer snug. I am unable to meaningfully relate the term to goods other than some of its clothing and its caps.

[54] Considering the foregoing, I find that the Mark has a slightly greater degree of inherent distinctiveness than does the Opponent’s KOALA BABY Trademark.

[55] With respect to the extent to which the parties’ trademarks have become known, the Opponent argues that it is a famous chain of toy and baby stores with numerous retail stores and websites receiving millions of visitors each year [Opponent’s written representations, para 16]. While the notoriety of the Opponent itself is not refuted, it is the extent to which its KOALA BABY Trademark has become known that is at issue.

[56] The Opponent claims annual sales, between 2019 and 2022, of more than 200,000 units of goods bearing the “Koala Trademarks” with the associated generated or more than $4,000,000. It is unclear what portion of units or sales relates to Registered Goods associated with the KOALA BABY Trademark. For this reason, it is unclear to what extent the KOALA BABY Trademark has become known and for what goods.

[57] The evidence at hand that might be said to contribute to the Opponent’s KOALA BABY Trademark becoming known includes the Opponent’s flyers, website pages and in-store displays.

[58] Regarding the flyer appearing in Exhibit A, Mr. Muriella does not provide distribution figures for Canada. I am therefore not prepared to conclude that this flyer contributed in a meaningful way to the extent to which the Opponent’s KOALA BABY Trademark has become known.

[59] The materials in evidence showing various goods associated with the KOALA BABY Trademark as it appears on the Opponent’s website and in store are also deficient in that there is no indication of the level of sales of these goods, or of the period of time during which these were sold. Indeed, the evidence suggests some of the items were, at least on the date the evidence was collected, out of stock [see, for example, Exhibits P and Q].

[60] While Mr. Muriella has provided an indication of the number and value of sales, the aggregate nature of this evidence means I am unable to presume a particular level of sales in respect of any of the products associated with the KOALA BABY Trademark. Likewise, the evidence in the form of flyers, website materials or in-store displays is not particularly enlightening. I am therefore unable to assess with any accuracy the extent to which the KOALA BABY has become known in Canada and what goods it was associated with.

[61] Despite these evidentiary deficiencies, based on a fair reading of the evidence in its entirety, I am prepared to accept that the Opponent’s KOALA BABY Trademark has become known to some limited extent in Canada. I rely on evidence, including the substantial number of visits to the Opponent’s website by Canadians, the statements of use of the KOALA BABY Trademark as supported by products associated with this trademark and appearing on the Opponent’s website or in stores. I note Mr. Muriella furnished the statement that these website pages were representative of how the goods appeared since 2020. I am prepared to accept that the Opponent’s KOALA BABY Trademark has become known to some extent, at least in relation to some of the Opponent’s bed, bath and changing articles as well as body suits. While the web page associated with KOALA BABY bodysuits indicates that the item is out of stock, I note the existence of several customer reviews, suggesting previous sales.

[62] The Opponent claims an annual revenue of more than 4 million for the period of 2019 to 2022 in respect of the Opponent’s KOALA branded goods, one category of which is the goods branded KOALA BABY. It is reasonable to infer that at least a portion of those sales have corresponded to the Registered Goods in evidence as used in association with the Opponent’s KOALA BABY Trademark, even if specifics are absent.

[63] The overall assessment of the section 6(5)(a) factor combining inherent and acquired distinctiveness therefore favours the Opponent, but only in respect of the Class 25 Goods and not otherwise.

The Length of Time the Trademarks Have Been in Use

[64] The Applicant has evidenced sales of mugs, a tote bag and a sweater, since February 2023 [Lifeso Affidavit, para 17, cross examination questions 33 and 34 and response to the Undertaking associated with those questions].

[65] The Opponent argues that it has been using its KOALA BABY registered trademark since at least 2014 [Opponent’s written representations, para 19]. However, the evidence does not support a claim to use any earlier than 2019. In this regard, I note the only evidence predating 2019 is the flyer at Exhibit A to Mr. Muriella’s affidavit. There is no indication of sales from 2014 to 2019 of goods appearing in the flyer as associated with the Opponent’s KOALA BABY Trademark. Additionally, I note Mr. Muriella’s statements specify use “for many years” rather than saying “since 2014” in the context of the flyer (Muriella affidavit, para 5 and Exhibit A). Furthermore, Mr. Muriella’s relies on the wording “since the filing of the Opposed Mark” (Muriella affidavit, para 6 in respect of a claim to sales of KOALA branded products), “since 2020” in respect of the representative examples of products available through the Opponent’s website (Muriella affidavit, paras 9 and 13) and “…years between 2019 and 2022” for the sales value and volume figures (Muriella affidavit, para 16). While paragraph 16 of Mr. Muriella’s affidavit contemplates a table containing sales information from 2015 to 2021, no such table was provided.

[66] The evidence supports a claim to use by the Opponent of the KOALA BABY Trademark since 2019 in association with bath, bedding and changing products for babies as well as bodysuits. I find that in light of the Opponent’s use of its KOALA BABY Trademark, this factor favours the Opponent in respect of the Class 25 Goods, but not otherwise.

Nature of the Goods or Business

[67] In determining this factor, it is the Applicant’s statement of goods as defined in its application and the Registered Goods that I must consider [Esprit International v Alcohol Countermeasure Systems Corp (1997), 84 CPR (3d) 89 (TMOB). However, those statements must be read with a view to determining the probable type of business or trade intended by the parties rather than all possible trades the wording might encompass. Evidence of the parties’ actual trades is useful in this respect [McDonald’s Corp v Coffee Hut Stores Ltd (1996), 68 CPR (3d) 168 (FCA); Procter & Gamble Inc v Hunter Packaging Ltd (1999), 2 CPR (4^th) 266 (TMOB); American Optional Corp v Alcon Pharmaceuticals Ltd (2000), 5 CPR (4^th) 110 (TMOB)].

[68] To summarize, the Opponent’s Registered Goods are limited to items for babies and comprise goods that would be part of a baby layette, baby bedding and bath textiles and mobiles. The Registered Goods that might be considered most closely related to the Applicant’s Class 25 Goods are “robes,” along with whatever infant clothing might be included as part of a layette, for example, infant bodysuits.

[69] The Applicant’s Class 16 Goods do not overlap with those of the Opponent. At best, some of these are intended for children. However, the intrinsic nature of the Applicant’s Class 16 Goods differentiates them from the Opponent’s Registered Goods. That the respective goods of the parties may be intended for children is too broad a commonality to be determinative, given the facts of this case.

[70] The Applicant argues that it is incorrect to presume goods are similar merely because they fall within the same general class, for example clothing, relying on Tradition Fine Food Ltd. v 3102-6636 Quebec Inc, 2006 FC 858 (Tradition) [Applicant’s written representations para 11]. While I generally agree with the statement, the Applicant overlooks a significant distinction. In the Tradition decision, Justice Blanchard qualified Clorox Co. v Sears Canada Inc 2 FC 579 (Clorox), saying at paragraph 77:

His point was to caution against giving too much weight to the fact that products fall within the "same general class"; otherwise, holders of weak trade-marks would essentially gain a monopoly over a particular word. That is, just because two trade-marks operate in the "same general class" does not automatically mean that confusion will ensue. Rather, the Board and the Court must consider more specifically how similar the wares are, especially where the opponent's trade-mark is found to be not inherently distinctive.

[71] The trademarks at issue in Tradition were BAGEL TRADITIONAL & Design and TRADITION. In Clorox, the trademarks were K.C. MASTERPIECE and MASTERPIECE with the court finding “Masterpiece” to be a common dictionary word and therefore the trademarks entitled to a narrow scope of protection with the term being descriptive of the goods [Tradition, at para 17]. The court then cautioned that monopolies would be granted if, in the case of weak marks, reliance on the goods falling into the same general class precluded registration, adding that this was something which the courts have historically challenged [Tradition, at para 19]. The court agreed with the Board that the parties’ trademarks were weak. It also found that the Board properly applied Clorox in affording little weight to the fact that the goods fell into the same general class of goods because the trademarks were weak, and the nature of the goods differed.

[72] In the present situation, the parties’ trademarks cannot be considered weak. As discussed above, the term “koala” is not descriptive or even strongly suggestive of the respective goods of the parties. In this regard, I note that the Applicant herself argued that the Mark was inherently distinctive. While the Opponent’s KOALA BABY Trademark is slightly less so, as discussed above, it cannot be considered a particularly weak mark. For this reason, I believe the cased are distinguishable and the principle of the narrow protection doctrine discussed in Clorox and Tradition is not applicable to the present situation as it does not involve particularly weak marks.

[73] The Applicant has relied on exclusionary wording to restrict its claim, excluding essentially baby and maternity clothing and accessories. In respect of the Opponent’s KOALA BABY robes, and also infant clothing that might be considered part of a layette, there is no direct overlap with the Applicant’s clothing goods which are specifically intended for adults. Nonetheless, I find the Applicant’s Class 25 Goods to be related to the Opponent’s Registered Goods, in particular robes and infant layette clothing. The factor involving the nature of goods, therefore, favours the Opponent in respect of the Applicant’s Class 25 Goods, but not otherwise.

Nature of the Trade

[74] The Opponent sells its goods, including the Registered Goods, through its own stores and websites, while, at least currently, the Applicant sells or plans to sell through its website and third-party platform. The Opponent argues that an owner is entitled to exclusive use of its registered trademark through any channels rather than being confined to the methods currently or historically in use. I agree the assessment involving the nature of the trades must focus on the entitlement of the parties to sell their goods through a channel rather than whether they in fact do so [United Artists Pictures Inc. v Pink Panther Beauty Corp. (1998) 3 FC 534, 80 CPR (3d) 247 para 32].

[75] Absent restrictions in the statement of goods as to where the Registered Goods could be sold, given the overlap in respect of the Applicant’s Class 25 clothing and the possibility that the goods could travel through the same channels of trade, I find this factor favours the Opponent, but only in respect of these Class 25 Goods which owing to their similar nature might be expected to travel through the same channels of trade.

Degree of Resemblance

[76] When considering the degree of resemblance, trademarks must be considered in their totality. It is not correct to lay the trademarks side by side and compare and observe similarities or differences among the elements or components [Veuve Clicquot supra, at para 20]. In Masterpiece Inc v Alavida Lifestyles Inc, 2011 SCC 27 (Masterpiece), the Supreme Court further advises that the preferable approach when comparing marks is to begin by determining whether there is an aspect of the trade mark that is particularly striking or unique. I note that the resemblance between the trademarks will often have the most significant effect on the confusion analysis [Masterpiece, at para 49]. In addition, I am mindful of case law such as Conde Nast Publications Inc. v Union des Editions Modernes (1979), 46 CPR (2d) 183 at 188 (FCTD), which supports the principle that the first portion of a trademark is the most important for the purposes of assessing distinctiveness.

[77] The striking or unique portion of the Opponent’s trademark is clearly KOALA, given the descriptive significance of BABY. The same is not necessarily so for the Mark, where both components are at least somewhat striking and unique, as is the combination. I note that the first portion of the Mark, COZY, differs from the KOALA BABY Trademark.

[78] The parties’ trademarks resemble each other to some extent when viewed and when sounded, since both contain the term KOALA. However, the differing first portions meaningfully limit the degree of resemblance of the parties’ trademarks when viewed or when sounded.

[79] I find the parties’ trademarks convey somewhat different ideas. The Opponent’s KOALA BABY Trademarks conveys the idea of either a “koala” that is itself a “baby” or a “koala” associated with goods for babies. The Mark conveys a “koala” that is comfortable, warm or snug or perhaps suggesting the goods with these characteristics.

[80] While I was skeptical, the Opponent urged me at the hearing to find that “cozy” and “baby” convey a similar meaning. However, after reviewing the dictionary meanings of these terms, I am convinced this is not the case.

[81] Ultimately, while there is some resemblance between the parties’ trademarks in appearance, sound and idea suggested owing to the shared term KOALA, considering the parties’ trademarks in their entireties, I find these to be slightly more different than they are similar aurally, visually and with respect to the ideas suggested. For this reason, this factor favours the Applicant, but only slightly.

Surrounding Circumstances – Family of Trademarks

[82] While the Opponent refers to a “family of marks” (see, for example, Opponent’s written representations, para 4 and the statement of opposition, para 5), there is no presumption in an opposition proceeding that a family of marks exists. As argued by the Applicant during the hearing, to rely on a family of marks an opponent must establish that it is using more than one or two trademarks within a family. Given the deficiencies associated with the Opponent’s failure to provide evidence of sales relating to more than one or two trademarks specifically, I cannot conclude consumers would recognize a family of the Opponent’s trademarks [Arterra Wines Canada, Inc v Diageo North America Inc., 2020, FC 508].

Conclusion on the Registrability Ground

Class 25 Clothing

[83] Having considered all surrounding circumstances as these relate to the Applicant’s Class 25 Goods, and in particular noting the similarity in the goods and trades of the parties, the inherent distinctiveness and extent to which the Opponent’s KOALA BABY Trademark has become known, along with the length of time it has been in use, I find that the balance of probabilities between finding that there is no reasonable likelihood of confusion between the Mark and the Opponent’s KOALA BABY Trademark, and finding that there is a reasonable likelihood of confusion, favours the Opponent. This is despite the limited resemblance of the trademarks in respect of their appearance, sound and ideas suggested.

Class 16 Goods

[84] Having considered all the surrounding circumstances, and particularly taking into account that the there is limited resemblance between the parties’ trademarks in appearance, sound and idea suggested, and that the goods and trades of the parties are not closely related, I find that the balance of probabilities between finding that there is no reasonable likelihood of confusion between the Mark and the Opponent’s KOALA BABY Trademark, and finding that there is a reasonable likelihood of confusion, favours the Applicant. While the inherent distinctiveness and the extent to which the parties’ trademarks have become known in respect of these goods, as well as the length of time the parties’ trademarks have been in use favours the Opponent in respect of the Class 25 Goods, the same is not true in respect of the Class 16 Goods. Accordingly, the section 12(1)(d) ground of opposition is rejected in respect of these Class 16 Goods.

Non-Entitlement Pursuant to Sections 16(1)(a) and Non-Distinctiveness

[85] The material date in respect of this non-entitlement ground is the date of filing of the Application, in this case, July 1, 2019. The material date in respect of the non-distinctiveness ground is the filing date of the opposition, in this case July 11, 2022 (Metro-Goldwyn-Mayer Inc v Stargate Connections Inc, 2004 FC 1185).

[86] The Opponent has pleaded that pursuant to section 16(1)(a) of the Act, the Applicant is not the person entitled to registration of the Mark because, at the material date, the Mark was confusing with the Opponent’s trademarks as set out in Schedule A, these trademarks having been previously filed, used or made known in Canada.

[87] To meet its initial evidential burden for the section 16(1)(a) ground of opposition, the Opponent must show that it had used at least one of its trademarks at the filing date of the Application, namely July 1, 2019, and not abandoned the trademark(s) at the date of advertisement, which is May 11, 2022.

[88] Similarly, for the Opponent to meet its evidential burden under section 2 of the Act, it must show that as of the date of the opposition, namely August 5, 2022, its trademark had a substantial, significant or sufficient reputation in Canada so as to negate the distinctiveness of the Mark [Bojangles' International LLC v Bojangles Café Ltd, 2006 FC 657, 48 CPR (4^th) 427 at paras 33 and 34].

[89] I find that in light of the deficiencies in evidence discussed above, the Opponent has not met its initial evidential burden of proving use of one or more of its trademarks as of July 1, 2019, and that the trademark had not been abandoned as of May 11, 2022. Accordingly, the section 16(1)(a) non-entitlement ground is rejected.

[90] Likewise, the Opponent has not provided reliable evidence that any one or more of its trademarks had a substantial, significant or sufficient reputation in Canada so as to negate the distinctiveness of the Mark as of August 5, 2022. Accordingly, the non-distinctiveness ground is also rejected.

[91] I note that, notwithstanding the foregoing, had I found that the Opponent met its initial burden, the outcome of these two grounds would be no better for the Opponent than the outcome reached in respect of the non-registrability ground determined above.

Non-Entitlement Pursuant to Section 16(1)(b)

[92] The Opponent alleges under this ground that the Applicant is not entitled to register the Mark, in view of section 16(1)(b) of the Act because, at the filing date of the application, the Mark was confusing with the Opponent’s unregistered trademarks, applications for the registration of which were pending (Pending Trademarks).

[93] With respect to this ground, I find that the Opponent has met its initial burden as the Pending Trademarks were active on July 1, 2019.

[94] The analysis above set out in respect of the non-registrability ground, while similar in some regards, differs in that there is no meaningful evidence that the Pending Trademarks were known to any extent as of the material date. Similarly, the length of time the parties’ trademarks have been in use can no longer be said to favour the Opponent as there is no convincing evidence of use as of the material date. While there is no substantial change to the factor involving resemblance of the trademarks in appearance, sound and idea suggested, given the addition of a third term to the these trademarks, for example “maternity” in KOALA MOM MATERNITY, the resemblance is slightly less than is the case in respect of the analysis performed under the non-registrability ground. That said, since the Pending Trademarks cover maternity clothing, there is a direct overlap with the Class 25 Goods in the nature of adult clothing and also in respect of the potential channels of trade for these goods.

Conclusion on the section 16(1)(b) Entitlement Ground

[95] In respect of the Class 25 Goods, having considered all the surrounding circumstances contemplated by section 6(5) of the Act, I consider this case to be, at best, borderline given the absence of evidence of use and reputation and the limited resemblance of the parties’ trademarks. That being said, in light of the overlap in the goods and channels of trade, the Applicant has not convinced me that, on a balance of probabilities, there is not a reasonable likelihood of confusion between the Mark and any of the Pending Trademarks. As a result, the section 16(1)(b) ground is successful in respect of the Class 25 Goods.

[96] However, in respect of the Class 16 Goods, given the differences in the nature of the goods and trades, the absence of evidence that the Pending Trademarks were used for any length of time or had become known in Canada as of the material date and in light of the limited resemblance between the parties’ trademarks I am convinced that, on a balance of probabilities, there is no reasonable likelihood of confusion between the Mark and any of the Opponent’s Pending Trademarks. Accordingly, the section 16(1)(b) ground is rejected in respect of the Class 16 Goods.

Applicant Was Not Using and Did Not Propose to Use the Mark

[97] The material date in respect of this ground of opposition is the filing date of the Application[Georgia-Pacific Corp v Scott Paper Ltd (1984), 3 CPR (3d) 469 (TMOB) at 475].

[98] The Opponent has pleaded that the Application does not comply with section 38(2)(e) of the Act as the Applicant was not using, either by herself or through a licensee, the Mark in Canada in association with the applied-for goods.

[99] As an initial determination, I find the pleading itself is insufficient. While it is generally acceptable to simply plead that an applicant was not using the applied-for trademark to satisfy the first component of section 38(2)(e) of the Act, the Opponent has not gone on to plead material facts to satisfy the second component, namely indicating why the Applicant did not propose to use the Mark in Canada. It does not suffice to simply say that the Applicant has not taken serious steps to use the Mark in connection with the applied for goods without pleading appropriate material facts.

[100] Nonetheless, even if the ground had been properly pleaded, I would have found that the Opponent did not meet its initial evidential burden. When I enquired during the hearing as to how the Opponent believed it had met its burden, the Opponent’s agent relied on the decision of the Registrar in Wheel Pros, LLC v KMC Chain Industrial Co., Ltd, 2024 TMPB 36 (Wheel Pros). While the section 38(2)(e) ground did partially succeed in Wheel Pros, this was attributable to answers on cross-examination suggesting that a particular good was not under development. There is no similar evidence in this case. This ground is therefore rejected.

Disposition

[101] Pursuant to the authority delegated to me under section 63(3) of the Act, I refuse the application with respect to the Class 25 Goods:

Cl25 Caps; casual clothing; hooded pullovers; hooded sweatshirts; jackets; long sleeve pullovers; long sleeve shirts; long-sleeved t-shirts; men's shirts; men's socks; mittens; pants; shirts; short-sleeve shirts; short-sleeved shirts; short-sleeved t-shirts; sleepwear; socks; softball caps; sweaters; sweatshirts; t-shirts; ties; toques; women's shirts; women's socks; all the foregoing excluding baby clothing, baby fashion accessories, children's clothing, children's fashion accessories, maternity clothing and maternity fashion accessories

and I reject the opposition with respect to the remainder of the Class 16 Goods, namely:

Cl16 Baby books; birthday cards; books; calendars; children's books; children's storybooks; Christmas cards; colouring books; cook books; educational books; greeting cards; greetings cards; invitation cards; picture books; pictures; posters; thank you cards; wall calendars

pursuant to section 38(12) of the Act.

Coleen Morrison

Member

Trademarks Opposition Board

Canadian Intellectual Property Office

Schedule A

Opponent’s Trademarks

No.	Trademark	Registration No.	Goods
1	KOALA BABY	TMA703,964	Pillows; Bedding and bedding sets, namely crib sheets, crib blankets, cradle sheets, port-a-crib sheets, dust ruffles, bassinet sheets, and receiving blankets; clothing namely baby layette; and mobiles and musical mobiles
2	KOALA KIDS	TMA841,513	Baby and children’s clothing
3	KOALA BABY & Design	TMA876,865	Clothing for infants and children, namely, baby bibs not of paper, body suits, bonnets, booties, bottoms, namely pants, baby pants, leggings and pajama bottoms, caps, cardigans, coordinating sets comprising tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirts and bottoms namely pants, baby pants, leggings and pajama bottoms, creepers, dresses, hats, layette sets comprising tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirts, layette sets comprising tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirts and pants, layette sets comprising tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirts, layette sets comprising cardigans and pants, layette sets comprising creepers and pants, layette sets comprising cardigans, tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirts and pants, layettes, mittens, sets comprising tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirt, pants, rompers, shirts, short sets, sets comprising tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirts, shorts, skirts, sleepwear, sweat shirts, sweat pants, sweaters, swimsuits, swimwear sets comprising swimsuits, swimwear sets comprising swim trunks, tee-shirts, tops namely, children's shirts, collared shirts, hooded sweatshirts, bodysuits, sweaters, t-shirts, pajama tops and diaper shirts.
4	KOALA KIDS and DESIGN	TMA876,873	Clothing for infants and children, namely, baby bibs not of paper, hats, jeans.
5	KOALA BABY	TMA1,029,177	Diaper Bags, totes, quilts, waterproof bedding, burp cloths, multi use pads, sheet savers, pad liners, pad covers, contour changing pads, bassinet pads, porta pads and cradle pads, wash cloths, towels, namely bath towels cloth towels, wash mitts, bath swaddles; twin and full bedding sets, crib Bedding Sets, receiving blankets, security blankets, swaddles and fashion blankets, crib sheets, bassinet sheets, porta sheets and cradle sheets; robes; bibs.
6	KOALA BLUES [now expunged]	TMA1,030,833	Baby and children's clothing, namely, coveralls, overalls, shirts, tee shirts, bodysuits, jeans, pants, knit pants, twill pants, knit and woven shorts, dresses, rompers, jumpers, underwear, swimwear, sweatshirts, hats, gloves, caps, buntings, jackets, shortalls, cloth bibs, layette and socks.
7	Koala Baby Essentials and Design	TMA1,121,326	[1] Cloth diapers; disposable training pants; disposable diapers; hangers for baby and children's clothes; multi use sleeping pads, bumper guards for cribs, bumper guards for furniture; cloth bags specially adapted for the stacking and storing of diapers; quilts, waterproof bed sheets, waterproof bed blankets, waterproof bed covers, waterproof bed linen, burp cloths, multi use bed pads, cot bumpers, sheet savers, bed pad liners, bed pad covers, contour changing pads, bassinet pads, portable bed pads and cradle pads, wash cloths, towels, namely, bath towels, cloth towels, wash mitts, bath swaddles; Bedding and bedding sets, namely crib bumper pads, crib sheets, crib blankets, cradle bumper pads, cradle sheets, port-a-crib bumper pads, port-a-crib sheets, dust ruffles, comforter and bassinet sheets, window valances and receiving blankets; clothing for infants and children, namely caps, cardigans, coats, coordinating sets comprising tops and bottoms, mittens; Footwear for children and infants, namely shoes, boots, sandals, slippers; and clothing for infants and children, namely casual clothing and athletic clothing;
8	Koalababy & Design	TMA1,121,325	Cloth Diapers; disposable training pants; car seat safety harnesses, child car seat covers; drink holders adapted for child car seats; hangers for baby and children's clothes; head supporting pillows for attachment to child car seats; Window treatments namely window blinds, window shades, window finials, curtain rods, curtain rails, curtain rings, curtain tie backs; cloth bags specially adapted for the stacking and storing of diapers; burp cloths; wash cloths; towels, namely, bath towels, cloth towels, wash mitts, bath swaddles; twin and full bedding sets, crib bedding sets, receiving blankets, security blankets, swaddles and fashion blankets, crib sheets, bassinet sheets, portable bed sheets and cradle sheets, and window drapery; bedding and bedding sets, namely crib bumper pads, crib sheets, crib blankets, cradle bumper pads, cradle sheets, port-a-crib bumper pads, port-a-crib sheets, dust ruffles, comforter and bassinet sheets, window valances and receiving blankets; robes being bath robes and housecoats; clothing namely baby layette clothing; clothing for infants and children, namely, baby bibs not of paper, body suits, bonnets, booties, bottoms, namely pants, baby pants, leggings and pajama bottoms; clothing for infants and children, namely caps, cardigans, coats, coordinating sets comprising tops and bottoms, mittens; clothing for infants and children, namely shirts, knit shirts, woven shirts, collared shirts, pullovers, hooded shirts, hooded sweatshirts, hooded jackets, bodysuits, sweaters, tshirts, blouses, pajama tops, diaper shirts, pants, baby pants, leggings, pajama bottoms, coveralls, creepers, dresses, hats, jackets, jeans, jogging suits, jumpers, jumpsuits, skirts, skorts; clothing for infants and children, namely layette sets comprising shortalls and tops namely, children's shirts, knit shirts, woven shirts, collared shirts, pullovers, hooded shirts, hooded sweatshirts, hooded jackets, bodysuits, sweaters, t-shirts, blouses, pajama tops and diaper shirts, layette sets comprising tops namely, children's shirts, knit shirts, woven shirts, collared shirts, pullovers, hooded shirts, hooded sweatshirts, hooded jackets, bodysuits, sweaters, t-shirts, blouses, pajama tops and diaper shirts and pants; clothing for infants and children, namely layette sets comprising gowns and caps, layette sets comprising overalls and tops; clothing for infants and children, namely, sleepwear, snow suits, socks, sweat shirts, sweat pants, sweaters, swimsuits, swimwear sets comprising swimsuits and coverups, swimwear sets comprising swim trunks and coverups, tee-shirts, tights, wind resistant jackets; clothing for infants and children, namely, casual clothing and athletic clothing; footwear for children and infants, namely shoes, boots, sandals, slippers; smock bibs for babies; smock bibs for toddlers; cloth baby bibs; cloth bibs for toddlers; vinyl smock bibs for babies and toddlers; crib mobiles, plush and stuffed animals, soft rattles, Christmas tree ornaments, play tables, children's multiple activity tables, Halloween trick or treat plush bags, and toy Easter baskets; toys designed to be attached to car seats
9	KOALA MOM ESSENTIALS MATERNITY [now registered, pending at the filing date of the Application]	App No. 1,837,896 TMA	Maternity t-shirts, maternity tank tops, maternity leggings, maternity cardigans, maternity pants, maternity pajamas, maternity robes, maternity sweaters, maternity outerwear jackets, maternity shoes, maternity slippers
10	KOALA MOM MATERNITY [now registered, pending at the filing date of the Application]	App No. 1,875,807 TMA1,148,279	Maternity t-shirts, maternity tank tops, maternity leggings, maternity cardigans, maternity pants, maternity pajamas, maternity robes, maternity sweaters, maternity outerwear jackets, maternity shoes, maternity slippers
11	KOALA MOM MATERNITY [now registered, pending at the filing date of the Application, divisional of app No. 1,875,807]	App No. 2,101,160 TMA1,148,280	Maternity support bands; Maternity t-shirts, tank tops, leggings, nursing shawls, nursing scarves, nursing bras, panties, cardigans, pants, pajamas, robes, sweaters, outerwear jackets, shoes, slippers
12	KOALA MOM ESENTIALS MATERNITY [now registered, pending at the filing date of the Application, divisional of app No. 1,837,896]	App No. 2,101,166 TMA1,148,281	Maternity support bands; Maternity t-shirt, tank top, leggings, nursing shawls, nursing scarves, nursing bra, panties, cardigans, pants, pajamas, robes, sweaters, and outerwear jackets

Appearances and Agents of Record

HEARING DATE: 2025-01-22

APPEARANCES

For the Opponent : Lawrence Veregin

For the Applicant: Regeena Lifeso

AGENTS OF RECORD

For the Opponent : Aird & Berlis LLP

For the Applicant: No agent appointed