The Trademarks Opposition Board (the "TMOB") has refused a trademark application for DOGKIND because it was considered confusing with a previously registered trademark for PETKIND.
The Applicant, Dogkind Services Inc., applied for the DOGKIND mark in association with pet-related services. PetKind Pet Products Inc., the Opponent, owned a registration for the trademark PETKIND, which was registered in association with pet-related goods and services.
Upon the DOGKIND application being advertised, a statement of opposition was filed by the Opponent alleging, inter alia, that the Applicant's trademark was confusing with the Opponent's PETKIND trademark registration.
In its decision, the TMOB reviewed the factors for confusion laid out in s. 6(5) of the Trademarks Act. Although the TMOB acknowledged that the case was "at best, borderline", particularly given the lack of inherent distinctiveness of the marks at issue and the limited evidence of use provided by the Opponent, the TMOB nonetheless concluded that PETKIND and DOGKIND were confusing with each other. The TMOB concluded that there was confusion due to the degree of similarity between the two marks (given the similarity in ideas suggested by the prefixes DOG- and PET- in the two marks), as well as the similarity between the goods and services at issue.
The decision is a reminder of the fact-specific nature of determining whether two trademarks are confusing with each other. It is also an important reminder of the drawbacks of selecting a trademark with a low degree of inherent distinctiveness.
A copy of the decision is available here.
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