Docket:
T-1867-08
Citation:
2013 FC 1010
Ottawa, Ontario, October 4, 2013
PRESENT: The Honourable
Madam Justice Snider
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BETWEEN:
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EMPRESA CUBANA DEL TABACO,
TRADING ALSO AS CUBATABACO AND
CORPORATION HABANOS S.A.
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Applicants
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and
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TEQUILA CUERVO, S.A. DEC. V.
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
On February 16, 1996,
Tequila Cuervo, S.A. Dec. V (Cuervo or the Respondent) filed a trade-mark
application in the Canadian Intellectual Property Office (CIPO), with
application no. 804,663 (the '663 Application). In the '663 Application,
Cuervo applied for registration of the trade-mark LAZARO COHIBA based on
proposed use in Canada with “alcoholic beverages, namely rum”. The '663
Application was subsequently amended to include a disclaimer to the word LAZARO
and was advertised for opposition purposes on August 26, 1998. The Respondent
has not used the LAZARO COHIBA mark in Canada.
[2]
By amended Statement
of Opposition dated January 19, 2007, Empresa Cubana Del Tabaco, trading also
as Cubatabaco, and Corporation Habanos S.A. (collectively referred to as
Habanos or the Applicants) opposed the proposed registration of the LAZARO
COHIBA trade-mark on various grounds. The most relevant ground to the matter
before me was that the mark was not registrable based on likelihood of
confusion with Habanos’s COHIBA registered trade-marks.
[3]
The Habanos marks are
as follows:
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Trade-Mark
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Registration
No.
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Wares
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COHIBA
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277,250 (the
'250 Mark)
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Leaf tobacco,
manufactured tobacco for smoking and chewing, snuff and cigarettes
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373,446 (the
'446 Mark)
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Raw tobacco,
cigars, cigarillos, cigarettes, cut tobacco, rappee, manufactured tobacco of
all kinds, matches, tobacco pipes, pipe holders, ashtrays, match boxes, cigar
cases and humidors
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[4]
Cuervo responded to
these grounds of opposition. Both parties filed evidence and made arguments
before the Trade-marks Opposition Board (the Board). In a decision dated
September 30, 2008 (the Decision), the Board rejected all of Habanos’s
grounds of opposition. As of this date, the '663 Application is still pending.
[5]
As permitted by s. 56
of the Trade-marks Act, RSC 1985, c T-13 [Trade-marks Act or the
Act], Habanos appeals the Board's Decisions in the present proceeding. Rule
300(d) of the Federal Courts Rules, SOR/98-106 [the Rules] directs that
appeals under the Trade-marks Act are to be brought by way of and
considered as "applications" under the Rules.
II. Issues
[6]
The overarching issue
in this appeal is whether the Decision should stand. Subsidiary to this
question are the following sub-issues:
1.
What is the
appropriate standard of review?
2.
Would the “new”
evidence presented for this appeal have a material effect on the Decision?
3.
If the new evidence
would have a material effect, would the applied-for mark likely be confusing
with either the '250 Mark or the '446 Mark?
III. The Statutory Framework
[7]
The registration of a
trade-mark in respect of any wares or services gives to the owner the exclusive
right to the use of that mark throughout Canada (Act, s. 19). There are a
number of requirements set out in the Act for the registration. For purposes of
this proceeding, the critical requirement is that a trade-mark is not
registrable if it is confusing with a registered trade-mark (Act, s. 12(d)). As
provided in s. 2 of the Act:
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“confusing” ,
when applied as an adjective to a trade-mark
. . . means
a trade-mark or trade-name the use of which would cause confusion in the
manner and circumstances described in section 6;
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« créant de la confusion » Relativement à
une marque de commerce ou un nom commercial, s’entend au sens de l’article 6.
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[8]
Parliament chose to
give the Board (and, now, this Court) further guidance on the question of
confusion:
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6. (1) For the purposes of this Act, a trade-mark
or trade-name is confusing with another trade-mark or trade-name if the use
of the first mentioned trade-mark or trade-name would cause confusion with
the last mentioned trade-mark or trade-name in the manner and circumstances
described in this section.
(2) The use of a trade-mark causes confusion
with another trade-mark if the use of both trade-marks in the same area would
be likely to lead to the inference that the wares or services associated with
those trade-marks are manufactured, sold, leased, hired or performed by the
same person, whether or not the wares or services are of the same general
class.
(3) The use of a trade-mark causes confusion with a
trade-name if the use of both the trade-mark and trade-name in the same area
would be likely to lead to the inference that the wares or services
associated with the trade-mark and those associated with the business carried
on under the trade-name are manufactured, sold, leased, hired or performed by
the same person, whether or not the wares or services are of the same general
class.
(4) The use of a trade-name causes confusion with a
trade-mark if the use of both the trade-name and trade-mark in the same area
would be likely to lead to the inference that the wares or services
associated with the business carried on under the trade-name and those
associated with the trade-mark are manufactured, sold, leased, hired or
performed by the same person, whether or not the wares or services are of the
same general class.
(5) In determining whether trade-marks or
trade-names are confusing, the court or the Registrar, as the case may be,
shall have regard to all the
surrounding circumstances including
(a) the
inherent distinctiveness of the trade-marks or trade-names and the extent to
which they have become known;
(b) the
length of time the trade-marks or trade-names have been in use;
(c) the
nature of the wares, services or business;
(d) the
nature of the trade; and
(e) the
degree of resemblance between the trade-marks or trade-names in appearance or
sound or in the ideas suggested by them.
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6. (1) Pour
l’application de la présente loi, une marque de commerce ou un nom commercial
crée de la confusion avec une autre marque de commerce ou un autre nom
commercial si l’emploi de la marque de commerce ou du nom commercial en
premier lieu mentionnés cause de la confusion avec la marque de commerce ou
le nom commercial en dernier lieu mentionnés, de la manière et dans les
circonstances décrites au présent article.
(2) L’emploi
d’une marque de commerce crée de la confusion avec une autre marque de
commerce lorsque l’emploi des deux marques de commerce dans la même région
serait susceptible de faire conclure que les marchandises liées à ces marques
de commerce sont fabriquées, vendues, données à bail ou louées, ou que les
services liés à ces marques sont loués ou exécutés, par la même personne, que
ces marchandises ou ces services soient ou non de la même catégorie générale.
(3) L’emploi
d’une marque de commerce crée de la confusion avec un nom commercial, lorsque
l’emploi des deux dans la même région serait susceptible de faire conclure
que les marchandises liées à cette marque et les marchandises liées à
l’entreprise poursuivie sous ce nom sont fabriquées, vendues, données à bail
ou louées, ou que les services liés à cette marque et les services liés à
l’entreprise poursuivie sous ce nom sont loués ou exécutés, par la même
personne, que ces marchandises ou services soient ou non de la même catégorie
générale.
(4) L’emploi
d’un nom commercial crée de la confusion avec une marque de commerce, lorsque
l’emploi des deux dans la même région serait susceptible de faire conclure
que les marchandises liées à l’entreprise poursuivie sous ce nom et les
marchandises liées à cette marque sont fabriquées, vendues, données à bail ou
louées, ou que les services liés à l’entreprise poursuivie sous ce nom et les
services liés à cette marque sont loués ou exécutés, par la même personne,
que ces marchandises ou services soient ou non de la même catégorie générale.
(5) En
décidant si des marques de commerce ou des noms commerciaux créent de la
confusion, le tribunal ou le registraire, selon le cas, tient compte de
toutes les circonstances de l’espèce, y compris :
a) le caractère distinctif
inhérent des marques de commerce ou noms commerciaux, et la mesure dans
laquelle ils sont devenus connus;
b) la période pendant laquelle
les marques de
commerce ou noms commerciaux ont
été en usage;
c) le genre de marchandises,
services ou entreprises;
d) la
nature du commerce;
e) le degré de ressemblance
entre les marques de commerce ou les noms commerciaux dans la présentation ou
le son, ou dans les idées qu’ils suggèrent.
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IV. The Decision
[9]
In the Decision, the
Board placed its main focus on the Applicants’ allegation that the applied-for
mark was not registrable because it was confusing with the '250 Mark and the
'446 Mark. The Board reviewed all of the factors set out in s. 6(5) of the Act,
making the following findings or observations:
•
Both marks are
“inherently distinctive”;
•
Since “LAZARO” is not
a common surname in Canada, “even the first portion of the applicant’s mark is
not particularly weak”;
•
Because Cuervo’s mark
has not been used in Canada, it “has not become known at all in Canada”;
•
Although the Habanos
marks have been used in Canada for a number of years with “steady and not
insubstantial” sales for the period 1994-99, there is a relatively small group
of purchasers of COHIBA cigars;
•
“In the absence of
additional evidence pointing to a Canadian reputation for [Habanos’s] marks”,
the Board was “only able to conclude that they have become known to some extent
in Canada”;
•
The length of time
the Habanos marks were used in Canada favours Habanos;
•
The wares and trades
of the parties are different; “at most the evidence shows a tenuous connection
in that some people may smoke and drink at the same time”; and
•
Although there is a
“fair degree of resemblance between the marks . . . The initial portion of
[Cuervo’s] mark “is not without some inherent distinctiveness and does help to
distinguish the marks of the parties”.
[10]
In its summary on the
test for confusion, the Board highlighted the two areas which were accorded
considerable weight:
In view of my conclusions above, and particularly in view of the
differences between the wares and trades of the parties and the fact that the
opponents have not established an extensive reputation for their marks, I
find that [Cuervo] has satisfied the onus to show, on a balance of
probabilities, that its mark is not confusing with the two registered marks
relied on by the opponents. [Emphasis added.]
[11]
Overall, after
considering all other grounds of opposition, the Board rejected Habanos’s
opposition.
V. Standard of Review
[12]
A preliminary step in
the analysis of the issues is the determination of the applicable standard of
review. The standard of review depends on the issue and the materiality of
evidence that has been put before me in this application.
[13]
Section 56 of the Act
provides for a right of appeal from a decision of the Board to the Federal
Court. On appeal, evidence in addition to that before the Board may be adduced
and the Federal Court may exercise any discretion vested in the Board (Act, s.
56(5)). When an applicant supplements the record in this manner, the standard of
review will depend on the materiality of any of the "new" evidence.
[14]
Evidence which would
have a material effect on the Board’s decision has a probative significance
extending beyond the material before the Board (Guido Berlucchi & C.
S.r.l. v Brouilette Kosie Prince, 2007 FC 245, 56 CPR (4th) 401 at paras
23-41). Where such evidence would have "materially affected" the
Board's finding of fact or its exercise of discretion, the Court must reach its
"own conclusion as to the correctness of the Registrar's decision" (Molson
Breweries v John Labatt Ltd, [2000] 3 FC 145 at para 51, 5 CPR (4th) 180 (FCA)).
[15]
If the new evidence
is repetitive and adds nothing of significance, the standard of review is
reasonableness (Telus Corp v Orange Personal Communications Services Ltd,
2005 FC 590 at para 33, 39 CPR (4th) 389). Otherwise, the Court will come to
its own determination on the issue (Telus Corp v Orange Personal
Communications Services Ltd, 2005 FC 590, (MacTavish J) aff’d 2006 FCA 6
(FCA), explaining Garbo Group Inc v Harriet Brown & Co (1999),
3 CPR (4th) 224, [1999] FCJ No 1763 (Evans J)). The test is one of quality, not
quantity.
[16]
Before me, Habanos
submitted substantial evidence which it characterizes as “new”. It follows that
the standard of review may only be ascertained after a careful analysis of the
evidence in the context of the opposition and the Board’s decision.
VI. New Evidence
A. A Summary of the New Evidence
[17]
For purposes of this
appeal, the Applicant submitted the following new evidence:
•
Expert testimony on
brand identity, pop culture and COHIBA’s status as an iconic brand (the Kindra
Affidavit). This affidavit also introduces some television shows, movies and
other media evidence where COHIBA cigars are either the subject or appear in
the media content;
•
An expert affidavit
stating that users of tobacco and alcohol often consume both products, or use
of one product causes use of the other (the Pihl Affidavit);
•
An affidavit of an
articling student, listing Société des alcools du Québec (SAQ) and Liquor
Control Board of Ontario (LCBO) agency stores, as of the relevant date of 2008,
which sold tobacco and hard alcohol (the Michaud Affidavit);
•
An affidavit of the
executive vice president, Audit Services, of the Audit Bureau of Circulations,
setting out magazine circulation numbers of Cigar Aficionado. Among others, it
shows May/June 1998 issue circulation numbers of 3,515 Canadian subscribers and
12,544 Canadian single-issue sales (the Moran Affidavit);
•
Two affidavits of a
trade-mark agent who had: (a) carried out a survey of SAQ and LCBO
agency stores, showing sales of alcohol and tobacco at such stores, as well as
the purchase of tobacco and alcohol at such stores, though after the relevant
date of the decision; and (b) obtained confirmation from both SAQ and LCBO that
their agency stores were in operation prior to the relevant date—216 LCBO
stores, and 422 SAQ agency stores (the Whissell Affidavits);
•
Two affidavits of an
articling student referring to collections of website information, as well as
the purchase of various media featuring COHIBA and the transcription of its
appearances (the Oliver Affidavits);
•
An affidavit of an
articling student who had carried out a telephone survey of 15 restaurants or
clubs demonstrating that these institutions served both tobacco products and
alcohol, and the opinion of staff explaining why the products are paired
together (the Hansen Affidavit).
[18]
With the exception of
the Hansen Affidavit, I am prepared to admit all of the evidence into these
proceedings. In my view, the Hansen Affidavit is simply too unreliable to be
admitted. The information contained in other affidavits prepared by the other
affiants is very fact based and relevant to the matter before me. The affiants were
not required to conduct complex surveys or design survey questions; as a
result, their information is reliable, even though some of it may consist of
information that is technically hearsay. Finally, these affidavits assisted me
by providing confirmation of certain matters set out in the Pihl Affidavit and
the Kindra Affidavit.
[19]
The expert opinion
affidavits of Dr. Pihl and Dr. Kindra are admissible. I am satisfied, on a
balance of probabilities, that the Mohan criteria for admission of
expert evidence have been met (R. v Mohan, [1994] 2 S.C.R. 9 at para 17, 29
CR (4th) 243). Further, in my gate-keeping function, I determine the evidence
is sufficiently beneficial to the process to warrant admission.
B. New Evidence and Material Impact
[20]
The Respondent
submits that the new evidence would not have materially affected the Board’s
decision. I must disagree. As noted above, the Board placed significant weight
on two factors in its conclusion on confusion: the difference in the nature of
the wares and the lack of fame of the COHIBA mark. For both these findings, the
Board highlighted the lack of evidence submitted. The information before the
Board had gaps, particularly in establishing notoriety of the mark among
members of the public, and whether or not cigars, cigarillos and tobacco
products are sold along with hard alcohol.
[21]
The new evidence is
directed at the gaps identified by the Board and thus impacts the Board’s
findings relating to the fame of the mark and the channels of trade. This
evidence is, therefore, directly addressed to the likelihood of confusion. The
new evidence is probative. It is not more of the same. It affects the Board’s
factual findings and exercise of discretion.
C. Affect of the New Evidence
[22]
The new evidence demonstrates
that the COHIBA mark is better known than was considered by the Board. COHIBA
is a widely known brand across Canada, and is known to more than “some extent”,
as the Board concluded. The new evidence establishes that COHIBA, as a brand,
has been referenced widely in film, television, music and other media, such as
print magazines distributed in the United States and Canada.
[23]
This use demonstrates
knowledge of the product outside the sphere of regular purchasers (Kindra
Affidavit). This is a broader cultural sphere than that considered at the
initial hearing, and this knowledge would have affected the Board’s decision.
[24]
COHIBA carries with
it an iconography of social status, wealth, power or intrigue which is in the
minds of not just purchasers, but in the general public. COHIBA has been deliberately
used in various media to cause viewers to imbue its qualities into a character
or situation, to create a connection between status and the character (the
Kindra Affidavit). The ability of the brand to evoke an instant association in
the audience’s mind is evidence of the fame of the mark (Kindra Affidavit).
This new knowledge would have impacted the decision.
[25]
With respect to the
channels of trade, the new evidence demonstrates that tobacco, including
cigars, and hard alcohol can be bought from the same stores in Ontario and Quebec (Whissel and Michaud Affidavits). COHIBA is in use with not only
high-end cigars, but also with cigarillos, and is registered for use with leaf
tobacco and other such products. SAQ and LCBO agency stores sell tobacco and
alcohol. Further, SAQ and LCBO agency stores sold tobacco and hard alcohol at
the relevant date (Whissel and Michaud Affidavits).
[26]
The Decision was
based on evidence that hard liquor and cigars were not sold in the same
locations in Quebec and Ontario, but for the Terry Affidavit, which shows the
purchase in 2001 of hard alcohol and tobacco at several Ottawa establishments.
This undermines the pillars of the Board’s decision making, particularly with
respect to channels of trade.
D. Conclusion on the “new” evidence
[27]
In sum, I am
persuaded that the new evidence, viewed in its entirety, would have
"materially affected" the Board's finding of fact or its exercise of
discretion. It follows that this Court may exercise any discretion vested in
the Registrar (Act, s. 56(5)). In other words, I may determine whether, on the
evidence now before me, the '663 Application should be refused on the basis
that it is confusing with the '250 and '446 Marks.
VII. Analysis of Confusion
[28]
A trade-mark can be
registered if it is not confusing with a registered trade-mark (Act, s. 12(1)(d)).
Confusion is defined (Act, s. 2), and the manner and circumstances in which
confusion is likely are set out at ss. 6(1), 6(2), 6(5) of the Act. In Mattel
Inc v 3894207 Canada Inc, 2006 SCC 22, [2006] 1 S.C.R. 772 at para 51, the
Supreme Court of Canada explained that:
Trade-mark confusion is a term defined in
s. 6(2) and arises if it is likely in all the surrounding circumstances (6(5))
that the prospective purchaser will be led to the mistaken inference
... that the wares or services associated with those trade-marks are
manufactured, sold, leased, hired or performed by the same person, whether
or not the wares or services are of the same general class. [Emphasis in
original]
[29]
The test is not one
of actual confusion. Instead, it is the first impression in the mind of the
casual consumer, somewhat in a hurry, with an imperfect recollection of the
original product, viewing the mark on the new product, who does not pause to
give the matter any detailed consideration or scrutiny, nor to examine closely
the similarities and differences between the marks (Veuve Clicquot Ponsardin
v Coutiques Cliquot Ltee, 2006 SCC 23, [2006] 1 S.C.R. 824 at para 20).
[30]
The onus is on the
person applying for registration, in this case, the owners of LAZARO COHIBA, to
demonstrate that on a balance of probabilities that there is no likelihood of
confusion with either the '250 or '446 Marks.
[31]
Guided by these
principles, I turn to the s. 6(5) factors to be considered:
(a)
inherent
distinctiveness and the extent to which they have become known;
(b)
the length of time in
use;
(c)
the nature of the
wares;
(d)
the nature of the
trade; and
(e)
the degree of
resemblance.
[32]
There is no dispute
between the parties as to the length of time that the COHIBA marks have been in
use. The main areas of disagreement relate to: (a) the extent to which the
Applicants’ marks have become known; (b) the nature of the wares and their
trade; and (c) the effect of the inclusion of the word “LAZARO” to the
applied-for mark.
A. Extent Known
[33]
In my view, the
evidence before this Court establishes that the brand COHIBA, particularly in
association with cigars, is very well known.
[34]
In its decision, the
Board found that:
In the absence of additional evidence
pointing to a Canadian reputation for the opponents’ marks, I am only able to
conclude that they have become known to some extent.
[35]
Before me, I have
evidence of COHIBA’s notoriety through two means. First, I have some sales
figures. As reflected in the Ortega affidavit (which was before the Board and
now before this Court), the Applicants’ sales figures from 1994 to1999 show
sales of roughly a dozen products in different forms under the '250 and '446
Marks (Ortego Affidavit, p.919). In my view, total sales of COHIBA-branded
products have not been insignificant.
[36]
Second, the fame of
the COHIBA mark extends beyond direct consumers of COHIBA products. The
additional evidence is directed at the fame of the COHIBA Mark. I begin by
observing that, for some iconic brands, personal ownership or use of the
product is not essential to the awareness or knowledge of a trade-mark. For
example, one does not need to own or drive a Jaguar to be aware of that brand
of car. In my view, the evidence supports a finding that the Cuban cigar known
as COHIBA is in that category.
[37]
In the opinion of Dr.
Kindra, the COHIBA mark is iconic. The use of the COHIBA cigars in media,
including film, television, music and print evokes a sense of legitimacy or
status on either a character or a singer. It is a round-about way of showing
public notoriety of the brand. I conclude COHIBA is well known—to the point of
being iconic—outside its sphere of users, and in the general knowledge of the
public.
[38]
Dr. Kindra’s opinion
is well reasoned and persuasive. I was concerned that counsel for the
Applicants provided Dr. Kindra with the examples of the use of COHIBA in films,
television shows and musical lyrics. It would have certainly added to the value
and reliability of his expert opinion if Dr. Kindra had carried out the research
to unearth the COHIBA references himself. However, there is no question that
these examples are factually accurate. Other affidavits before me attest to the
source of the examples. All that could possibly have been added by Dr. Kindra
carrying out his own search of media sources would be additional references to
the COHIBA brand. Moreover, the thrust of Dr. Kindra’s expert opinion is not
the number of media references to COHIBA. Rather, Dr. Kindra was telling the
Court that the inclusion of the COHIBA references in these media sources is a
demonstration of the fame of the brand.
[39]
The Applicants could
have done more to establish direct knowledge of the COHIBA brand; they could
have carried out a survey of Canadian consumers. However, the strength of the
references and of the opinion of Dr. Kindra satisfies me that the COHIBA brand
is well known in Canada. There is no doubt in my mind that television shows
such as “Sex and the City” and “The Simpsons”; the magazine “Cigar Aficionado”;
and the movie “Hotel Rwanda” were widely seen by Canadians. Similarly,
Canadians have listened to the music available in the United States. Surveys to establish the fame of the COHIBA brand in Canada, in this case and in view
of the strength of the evidence before me, are not necessary.
B. Nature of the wares and
their trade
[40]
In essence, the Board
concluded that cigars and hard spirits operated in two different channels of
trade. It is true that tobacco products and alcohol are two different products.
[41]
In this appeal, I
have considerable evidence that tobacco and hard liquor are sold at the same
(or adjacent) premises in many locations. This physical evidence is not
particularly persuasive on its own. Many products are sold at these stores
beyond tobacco and alcohol. Common sense tells me that a consumer entering one
of these enterprises would not likely confuse a COHIBA cigar or cigarillo with
a bottle of milk or a box of disposable diapers with the COHIBA name on it. The
reason why the proximity of cigars and alcohol is important for the analysis
only becomes apparent upon examination of the relationship between smoking and
alcohol. This is where the evidence of Dr. Pihl is very helpful.
[42]
According to Dr.
Pihl, a person who smokes is more likely a consumer of alcohol products. There
is a relationship in the mind of a smoker between alcohol and tobacco. In
effect, there is a predisposition for confusion. Thus, a smoker who sees a
bottle of hard liquor with a name that is the same as a brand of cigars or
cigarettes that he smokes would be more likely to associate the alcohol brand
with his cigarette brand.
[43]
The interplay between
cigars and hard spirits is enhanced through the media. Where permitted,
advertising often shows a male (almost never female) with a cigar in one hand a
glass of spirits in the other. As reflected in the media references that form
part of the record before me, cigars and alcohol are consistently paired. While
smoking a COHIBA cigar, Mr. Big was holding a glass of hard liquor. This
separates alcohol from other wares such as milk and disposable diapers.
C. Degree of Resemblance
[44]
The '663 Application
is for registration of the LAZARO COHIBA mark while the '250 and '446 Marks
include only the word COHIBA. While I agree that this may lessen the
possibility of confusion, it is not a factor to which I would give much weight.
It is a reasonable conclusion that the dominant word in both marks is “COHIBA”;
this provides the content and punch of the trade-mark (Masterpiece Inc. v
Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387 at paras 64, 83-84,
92 [Masterpiece]). Further, given the fame of the COHIBA brand, I would
expect the casual consumer somewhat in a hurry to focus his eye almost
completely on the COHIBA portion of the applied-for mark, essentially ignoring
the word “LAZARO”.
D. Conclusion on Confusion
[45]
Taking into
consideration all of the evidence before the Board and before me, and the factors
set out in s. 6(5) of the Act, I am satisfied that, on a balance of
probabilities, the test for confusion is met. The casual consumer, somewhat in
a hurry, seeing the applied-for mark on a bottle of rum, would be likely to
think that that the rum was from the same source as COHIBA-brand tobacco
products.
VIII. Conclusion
[46]
In spite of some
weaknesses in the evidence produced for this appeal, I am persuaded that the
appeal should succeed. COHIBA is an iconic brand of cigar, associated with
wealth and status. The fame of the brand extends beyond cigar smokers to the
general population. The association of cigars and alcohol – specifically hard
liquor – is notorious. As a result, I am satisfied that the first impression of
a casual consumer seeing a bottle of rum with the label LAZARA COHIBA would believe
that the rum was related to COHIBA products. In other words, there is a
likelihood of confusion.
[47]
On this basis the
appeal will succeed.
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