In a recent decision, the Trademarks Opposition Board ("TMOB") refused a trademark application for DOGKIND, finding it was confusingly similar to the already registered trademark, PETKIND.
Dogkind Services Inc. sought to register the DOGKIND mark for: (i) animal training, (ii) boarding for animals, and (iii) dog walking services.
PetKind Pet Products Inc. opposed registration, claiming it would likely cause confusion with its PETKIND trademark, which covers pet products, including dog food, and services related to pet ownership, such as workshops and counselling.
TMOB's decision hinged on an analysis of the factors outlined in Subsection 6(5) of the Trademarks Act, which assesses the likelihood of confusion between trademarks by considering, among other things:
- the inherent distinctiveness of the trademarks and the extent to which they have become known;
- the length of time the trademarks have been in use;
- the nature of the goods and services or business;
- the nature of the trade; and
- the degree of resemblance between the trademarks, including in appearance or sound or the ideas suggested by them.
Although TMOB considered the case to be "at best, borderline," it emphasized that the "legal onus is on the Applicant". TMOB further noted that, given the "similarity between the trademarks," as well as the "relatedness of the goods, services, and their channels of trade," it was not persuaded that, on a balance of probabilities, there is not a reasonable likelihood of confusion.
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