Registrar's finding of confusion for Mark
"Irresistibles" is upheld on appeal
Julia Wine Inc. v. Les marques metro, S.E.N.C., (Les marques
métro/metro Brands S.E.N.C.), 2016 FC 738
Julia Wine Inc, appealed a decision of the Registrar rejecting
its application to register the trademark "Irresistibles"
after the Respondent, Les Marques Métro Inc., filed a
statement of opposition.
The Registrar had found that there was a risk of confusion between
the Mark and the Respondent's mark. While the mark had a
relatively low degree of inherent distinctiveness because it was a
common adjective, the extent to which the Respondent's mark had
become known in Ontario and Québec clearly favoured the
Respondent. The Registrar also dismissed the Applicant's
argument to the effect that wine was a type of ware that was
distinct from the Respondent's products since wines could be
considered a natural extension of the range of products marketed by
the Respondent. Finally, the Registrar found that the Applicant did
not discharge its burden of proving that it was satisfied that it
was entitled to use the Mark at the time the application for
registration was filed, pursuant to paragraph 30(i) of the
On appeal to the FC, the Court found that the additional evidence
filed by the Application did not affect the Registrar's
findings and, therefore, proceeded to apply the standard of review
of reasonableness. The Court noted that the Registrar's
analysis was meticulous and detailed and her reasoning was
supported by knowledge of the case law that is relevant to the
issues raised. Given that the Registrar's findings on confusion
and on compliance with paragraph 30(i) of the Act were
based on the evidence and fell within a range of possible and
acceptable outcomes, the Court dismissed the appeal.
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