Docket: T-1886-16
Citation:
2017 FC 581
Ottawa, Ontario, June 13, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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HEATHER RUTH
MCDOWELL
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Applicant
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and
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THE BODY SHOP
INTERNATIONAL PLC
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Respondent
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JUDGMENT AND REASONS
[1]
This is an appeal of a decision of the
Trade-marks Opposition Board (“TMOB”), dated September 6, 2016 (2016 TMOB 150,
the “Decision”), in which the TMOB rejected the opposition of Heather Ruth
McDowell (the “Applicant”) to Application No. 1,600,908, filed by The Body Shop
International Plc (the “Respondent”), registering the trademark HONEYMANIA (the
“HONEYMANIA Mark”).
I.
Background
[2]
The Applicant owns two trademarks: TMA767,075 for
the word mark HONEY and TMA 767,134 for HONEY & DESIGN (the “HONEY Marks”).
The goods covered by the HONEY Marks include clothing, footwear, jewellery,
fashion accessories, watches, hair accessories and cosmetics. The overlap of
goods that are relevant to this appeal are cosmetics: namely, foundation made
of liquid or power, face creams, blush, eye shadow, eye liner, mascara,
lipstick, lip gloss, lip liner, make-up bags sold empty (the “HONEY Goods”).
The HONEY Marks are licenced to corporations that operate HONEY branded retail
outlets, though which HONEY branded goods are sold, bearing the HONEY Marks.
[3]
On November 2, 2012, the Respondent filed
Application No. 1,600,908, to register the HONEYMANIA Mark (the “HONEYMANIA
Application”). The goods contained in the HONEYMANIA Application as filed
include:
cosmetics, lip, skin and hair care preparations,
face cream and lotion, soaps for personal care and soap bags, bath and shower
gel, oils, beads, cream and effervescent powders and bubble bath, deodorants,
suntanning preparations, shaving preparations, perfumes, eau de toilette,
essential oils and perfume oils for personal use, for aromatherapy, for the
manufacture of perfumes, for cosmetic purposes and for the care of skin and
body, and perfume oils, nail care preparations, cotton sticks and cotton and
wool swabs for personal use, powdered cosmetic tissues, scented room
fragrances, incense sticks, potpourri and sachets, kits and gift sets
containing cosmetics, lip, skin, hair and nail care preparations (the
“HONEYMANIA Goods”).
[4]
The HONEYMANIA Application was advertised on
June 26, 2013, and the Applicant filed a Statement of Opposition on November
26, 2013.
II.
The TMOB Decision
[5]
The TMOB rejected the opposition on the
following grounds:
1)
The Applicant failed to meet the initial
evidentiary burden with respect to sections 16(3)(a) and 16(3)(c) of the Trade-marks
Act, as there was no evidence of use of the HONEY Marks as of the date of
advertisement of the HONEYMANIA Mark.
2)
The Applicant failed to meet the initial
evidentiary burden with respect to section 2 of the Trade-marks Act, as
the evidence failed to show that any of the HONEY Marks were in use or known in
Canada as of the applicable date.
3)
Considering the factors in section 6(5) of the Trade-marks
Act, on a balance of probabilities, there is no reasonable likelihood of confusion
under section 12(1)(d):
a.
None of the marks possess a particularly high
degree of distinctiveness because the word HONEY has common meanings.
b.
The Applicant failed to file evidence to show
that the HONEY Marks had acquired any reputation in Canada.
c.
It is reasonable to infer, based upon the number
of registered marks containing the word HONEY, that consumers would be
accustomed to some extent to seeing marks incorporating the word HONEY within
the context of cosmetics, personal care, and beauty related goods and services.
d.
The addition of the element MANIA results in
sufficient differences in appearance, sound, and suggested idea to conclude
that there is no likelihood of confusion.
III.
Issue
[6]
The following issues are to be resolved in the
present appeal:
1)
What is the applicable standard of review?
2)
Did the TMOB err in finding that:
a.
the HONEYMANIA Mark is not confusing with the
HONEY Marks?
b.
the non-entitlement and non-distinctiveness
grounds of opposition ought to be rejected?
IV.
Analysis
A.
Standard of Review
[7]
Section 56(5) of the Trade-marks Act provides
that on an appeal, under section 56(1), evidence in addition to that adduced
before the Registrar may be filed and the Federal Court may exercise any
discretion vested in the Registrar:
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(1) An appeal lies to the Federal
Court from any decision of the Registrar under this Act within two months
from the date on which notice of the decision was dispatched by the Registrar
or within such further time as the Court may allow, either before or after
the expiration of the two months.
…
(5) On an appeal under subsection
(1), evidence in addition to that adduced before the Registrar may be adduced
and the Federal Court may exercise any discretion vested in the Registrar.
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56 (1) Appel de toute décision rendue par le
registraire, sous le régime de la présente loi, peut être interjeté à la Cour
fédérale dans les deux mois qui suivent la date où le registraire a expédié
l’avis de la décision ou dans tel délai supplémentaire accordé par le
tribunal, soit avant, soit après l’expiration des deux mois.
…
(5) Lors de l’appel, il peut être apporté
une preuve en plus de celle qui a été fournie devant le registraire, et le
tribunal peut exercer toute discrétion dont le registraire est investi.
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[8]
In Mattel USA Inc v 3894207 Canada Inc,
2006 SCC 22 at paragraph 35 [Mattel], the Supreme Court of Canada stated
that, if new evidence is admitted, this review is a reconsideration of both
fact and law:
Where fresh evidence is admitted, it may,
depending on its nature, put quite a different light on the record that was
before the Board, and thus require the applications judge to proceed more by
way of a fresh hearing on an extended record than a simple appeal. Section 56
suggests a legislative intent that there be a full reconsideration not only of
legal points but also of issues of fact and mixed fact and law, including the
likelihood of confusion. See generally Molson Breweries v John Labatt Ltd.
[citations omitted]
[9]
The Federal Court of Appeal, in Molson
Breweries v John Labatt Ltd Molson Breweries, [2000] FCJ No 159 at
paragraph 51, stated:
Where additional evidence is adduced in the
Trial Division that would have materially affected the Registrar's findings of
fact or the exercise of his discretion, the Trial Division judge must come to
his or her own conclusion as to the correctness of the Registrar's decision.
[10]
However, if the additional evidence would not
have materially affected the TMOB’s findings of fact or exercise of discretion,
the standard of review is reasonableness (Spirits International BV v BCF
SENCRL, 2012 FCA 131 at para 10).
[11]
In order to determine whether the new evidence
would have materially affected the TMOB’s decision, the Court must assess the
quality, not the quantity, of the evidence—considering its nature,
significance, probative value, and reliability—to determine whether the
evidence adds something of significance (Illico Communication Inc v Norton
Rose SENCRL, 2015 FC 165 at para 26).
[12]
The Applicant filed new evidence on appeal,
consisting of an affidavit sworn by Ms. McDowell on November 20, 2016 (the
“McDowell Affidavit”), which includes:
1)
evidence regarding the Applicant’s operation of
HONEY retail store locations in Canada, which sell clothing, footwear,
headwear, jewelry, fashion accessories, watches, hair accessories, and
cosmetics;
2)
evidence regarding the length of time the HONEY
Marks have been in use;
3)
evidence of the annual sales of HONEY branded goods
in Canada, and the breakdown of sales of specific goods, including the HONEY
Goods; and
4)
evidence of quality control for HONEY branded
goods.
[13]
The Applicant argues that this new evidence
would have materially affected the TMOB’s decision because the evidence goes to
the level of reputation and goodwill associated with the HONEY Marks in Canada,
which would have been material to the TMOB’s assessment of confusion.
[14]
The Respondent contends that, regarding the
issue of confusion, the new evidence has no probative significance because the
Applicant failed to show that the HONEY Marks were known to any extent, or had
achieved any reputation, in Canada, in connection with the HONEY Goods.
Further, the Respondent asserts that the new evidence does not address the
relevant third party marks, which the TMOB held supported the finding that the
word HONEY would be perceived as having some significance with the
cosmetic/personal care/beauty industry, and the finding that the HONEY Marks do
not possess a high degree of inherent distinctiveness.
[15]
I find that the new evidence would have
materially affected the decision of the TMOB. Although most of the new evidence
shows the HONEY Marks associated with goods that are not the HONEY Goods, the
McDowell Affidavit evinces that cosmetics/personal care/beauty products (i.e.,
the HONEY Goods) comprise about 1% of the Applicant’s annual sales, and
attaches sales slips showing sales of cosmetic products and make-up bags.
[16]
Moreover, the key issue underpinning all three
of the TMOB’s findings is confusion. The new evidence shows that the Applicant
sold a variety of goods, using the HONEY Marks at the relevant dates for
registrability, entitlement, and non-distinctiveness. Despite the fact that the
images of goods attached to the McDowell Affidavit relate primarily to clothing
and accessories and do not show use of the HONEY Marks in relation to the HONEY
Goods at the relevant dates, the new evidence does show sales slips with HONEY
Marks used with HONEY Goods, albeit very few. As listed in the Applicant’s
written submissions at paragraph 14, the new McDowell Affidavit includes:
a)
evidence regarding the Applicant’s operations of
HONEY retail store locations in Canada;
b)
evidence regarding the Applicant’s control over
the quality and character of the goods and services provided in association
with the HONEY Marks;
c)
figures for annual sales of HONEY branded goods
in Canada and breakdown of sales of specific goods as percentage of total
sales;
d)
figures for annual promotional expenditures for
HONEY branded goods and services in Canada; and
e)
representative evidence of the use of the HONEY
Marks, including:
i.
on advertising and store signage in the HONEY
retail stores in Canada;
ii.
on the HONEY branded goods themselves;
iii.
on sales receipts of HONEY branded goods and
HONEY Goods sold in Canada;
iv.
on adhesive stickers which are affixed to tissue
paper or other packaging material used to wrap HONEY Goods purchased in Canada;
v.
on bar code stickers attached to the HONEY
Goods;
vi.
promotional cards, postcards, business cards,
for the promotion of the HONEY branded goods and services;
vii.
on gift cards and gift certificates and on
promotional materials promoting the Loyalty Card program offered in the HONEY
retail stores; and
viii.
on shopping bags, garment bags and boxes
provided to customers purchasing the HONEY Goods.
[17]
According to the McDowell Affidavit, in addition
to being affixed to the goods in her stores, the HONEY Marks are prominently
displayed on in-store and outdoor signage and the HONEY Marks are also used in
advertising and promotion, for example on stickers, business cards, postcards,
gift certificates and cards, shopping bags and boxes and garment bags.
[18]
The new evidence is material to the appeal and
addresses the gaps in evidence criticized by the TMOB: the Applicant failed to
show any use at the applicable dates and failed to show that the HONEY Marks
had acquired any reputation in Canada. This finding is consistent with a decision
of Justice Anne Mactavish in a trademark opposition appeal involving the
Applicant, the HONEY Marks, and essentially the same evidence as is in the
McDowell Affidavit (Heather Ruth McDowell v Laverana GmbH & Co. KG,
2017 FC 327 [McDowell]).
[19]
I find that the appropriate standard of review
is correctness.
B.
Relevant dates
[20]
The material date for determining compliance
with section 30 of the Trade-marks Act is the date the application was
filed.
[21]
The material date for considering confusion
under section 12(1)(d) of the Trade-marks Act is the date of the
Opposition Board decision. However, where additional evidence is filed that is
significant and probative, such that the standard is the Court should consider the
appeal as a fresh hearing, the material date is the date of the appeal
judgment.
[22]
The material date for considering distinctiveness
is the date of filing the Opposition.
C.
Onus on the Parties
[23]
While the initial evidentiary burden for the
opposition is on the opponent (in this case, the Applicant), the legal burden
or onus that the trademark is registrable remains on the applicant (in this
case, the Respondent), on a balance of probabilities (John Labatt Ltd v
Molson Co, [1990] FCJ No 533, aff’d [1992] FCJ No 525 (FCA)).
D.
Confusion Analysis
[24]
In opposition proceedings, the trademark
applicant (in this case, the Respondent) has the onus to show, on a balance of
probabilities, that there is no likelihood of confusion (Mattel at para
54). Section 6 of the Trade-marks Act outlines the statutory
scheme for when two trademarks are confusing with one another—section 6(5) is
particularly important:
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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.
…
(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 goods,
services or business;
(d) the nature of the trade; and
(e) the degree of resemblance
between the trademarks 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.
…
(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 produits, 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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[25]
In Veuve Clicquot Ponsardin v Boutiques
Cliquot Ltée, 2006 SCC 23 at paragraph 20 [Veuve Clicquot], the
Supreme Court laid out the test for confusion, as follows:
The test to be applied is a matter of first impression in the mind of a casual consumer
somewhat in a hurry who sees the name Cliquot on the respondents’ storefront or
invoice, at a time when he or she has no more than an imperfect recollection of
the VEUVE CLICQUOT trade-marks, and does not pause to give the matter any
detailed consideration or scrutiny, nor to examine closely the similarities and
differences between the marks.
[26]
The casual consumer—an average person who goes
into the market, not one skilled in semantics—does not tease out and analyse
each portion of a mark alone, but rather considers the mark as a whole, and as
a matter of first impression (Masterpiece Inc v Alavida Lifestyles Inc,
2011 SCC 27 at para 83 [Masterpiece]). However, when a casual consumer
looks at a mark as a whole, some aspect of the mark may be particularly
striking, because that aspect is the most distinctive part of the whole
trademark, and will be the dominant component which will affect the casual
consumer’s overall impression (Masterpiece, above, at para 84).
[27]
When applying the test in Veuve Clicquot,
above, the factors enumerated in section 6(5) of the Trade-marks Act are
to be considered. This is not an exhaustive list and different factors will be
given different weight in a context-specific assessment (Mattel at para
54).
(1)
Inherent distinctiveness of the trademarks or
trade-names and the extent to which they have become known.
[28]
The inherent distinctiveness of a word must be
assessed in the context of the goods and services to which the trademark
applies. Honey is not an ingredient found in the goods of either Party, and
there is no evidence that “honey” has any
inherently descriptive or suggestive connotations in the context of the HONEY
Goods. The TMOB nevertheless found that the HONEY Marks were not inherently
distinctive, in light of the laudatory meaning of the word “honey”, which weakened the strength of the marks.
[29]
In the absence of any evidence that “honey” is descriptive of the HONEY Goods, or that it is
an ingredient found in the goods of either Party, or evidence to support the
conclusion that “honey” has an inherently
laudatory connotation, I disagree with the TMOB and am satisfied that the HONEY
Marks possess at least some level of distinctiveness.
[30]
Moreover, the Respondent’s trademark application
is based upon proposed use in Canada, and there is thus no evidence that the
HONEYMANIA Mark has become known in this country. In contrast, although the
HONEY Goods only make up approximately 1% of the Applicant’s annual sales, the
HONEY Marks have been in continuous use since 2003 and the McDowell Affidavit
demonstrates that the HONEY Marks would be known to a certain extent, at least
in the Toronto area. This factor thus favours the Applicant.
(2)
Length of time the trademarks or trade-names
have been in use
[31]
The Applicant’s evidence shows continuous use of
the HONEY Marks since 2003, while the Respondent has yet to use the HONEYMANIA
Mark. The Respondent argues that this evidence of use is merely a bald
statement; however, they chose not to cross-examine Ms. McDowell. Absent any
evidence to the contrary, I accept that the Applicant has been using the HONEY
Marks in association with the HONEY Goods since 2003. This factor also favours
the Applicant.
(3)
Nature of the goods, services or business
[32]
The TMOB found that there was direct and
indirect overlap between the HONEY Goods and the HONEYMANIA Goods. The
Respondent argues that the Applicant has furnished very limited evidence of use
of the HONEY Marks in relation to the HONEY Goods, and no evidence showing
actual use. Based on the new evidence provided in the McDowell Affidavit, I find
that there is overlap between the Applicant’s HONEY Goods and the nature of the
Respondent’s HONEYMANIA Goods. This factor also favours the Applicant.
(4)
Nature of the trade
[33]
There was no evidence tendered by the Respondent
showing that the nature of the trade between the Applicant and Respondent
differ. This factor also favours the Applicant as there is a potential for
overlap in the channels of trade.
(5)
Degree of resemblance between the trademarks or
trade-names in appearance or sound or in the ideas suggested by them, and
inherent distinctiveness.
[34]
In Masterpiece, the Supreme Court opined,
at paragraphs 64 to 66, when discussing the degree of resemblance between the
trademarks in issue in that case:
The term “degree of resemblance” in s.
6(5)(e) of the Act implies that likelihood of confusion does not arise solely
from identical trade-marks. “[D]egree of resemblance” recognizes that marks
with some differences may still result in likely confusion.
The first word in both Alavida’s and
Masterpiece Inc.’s trade-marks is the identical word “Masterpiece”. It has been
held that for purposes of distinctiveness, the first word is important.
While the first word may, for purposes of
distinctiveness, be the most important in some cases, I think that the
preferable approach is to first consider whether there is an aspect of the
trade-mark that is particularly striking or unique…
[citations omitted]
[35]
The TMOB found that no one aspect of either of
the Parties’ marks (HONEY or HONEYMANIA) was particularly striking or unique.
The TMOB also found that the word “honey” is
somewhat laudatory and/or suggestive in nature, while the coined word
HONEYMANIA is comprised of two words that do not typically appear together.
While the TMOB properly focussed on the Parties’ marks as a whole and recognized
the principle that the first word or syllable of a trademark is often the most
important or dominant element in a trademark, she did not apply that latter principle
in her decision.
[36]
The TMOB concluded there was some degree of
resemblance between the Parties’ marks, given that they both contained the word
HONEY as the dominant first portion of the Parties’ trademarks. However, the
TMOB concluded that the Parties’ trademarks do not substantially resemble one
another, because the suffix MANIA reduced the degree of resemblance in sound
and appearance, and also resulted in differences in terms of ideas suggested.
The Respondent, not surprisingly, adopts the TMOB’s decision on this front.
[37]
The Respondent’s HONEYMANIA Mark has
incorporated the Applicant’s HONEY word mark in its entirety, as the first
portion of the mark. Given that the first portion of a mark is recognized as a
dominant portion of a mark in terms of distinctiveness, and that the confusion
assessment is based on the first impression of the average casual consumer, who
is somewhat in a hurry and who has an imperfect recollection of the HONEY Marks,
the first portion of the Parties’ respective marks (i.e. HONEY) would generally
be considered to be the more striking and distinctive portion of the Parties’
marks.
[38]
Moreover, there is no evidence to suggest that
the secondary element of the HONEYMANIA Mark (i.e. MANIA) possesses any
superior distinctiveness or dominance over the HONEY portion of the mark. As
noted by the TMOB, the HONEYMANIA Mark suggests the idea of extreme desire or
enthusiasm relating to or for HONEY.
[39]
Since there is no one meaning of the word “honey” that is inherently attributable to the Parties’
marks, I agree with the Applicant that the core meaning of the HONEYMANIA Mark
still relates to the dominant word “honey”.
Accordingly, the core ideas suggested by the HONEY Marks and the HONEYMANIA
Mark are similar.
[40]
The TMOB also rejected the notion that the MANIA
portion of the HONEYMANIA Mark is a modifier of the word HONEY and that HONEYMANIA
would be perceived by consumers as being suggestive of the Applicant’s HONEY
brand. The TMOB rejected the notion that HONEYMANIA was suggestive of HONEY, on
the basis that there was insufficient evidence of the use of the HONEY Marks to
draw any meaningful conclusions regarding the extent to which the HONEY Marks
have become known in Canada.
[41]
The new evidence in the McDowell Affidavit shows
that the HONEY Marks, through use and promotion by the Applicant dating back as
far as 2003, have acquired some degree of reputation and distinctiveness in
Canada. This finding is consistent with the decision of Justice Mactavish in McDowell,
above, at paragraph 37, where she held that such a reputation was established
on essentially the same evidence as in filed in this case.
E.
Surrounding Circumstances
[42]
The decision of Justice Mactavish concerning
state of the Register evidence deals aptly with the submissions made by the Parties
in this case, based on a review of essentially the same evidence:
41 The Board also had regard to the
state of the Register as one of the surrounding circumstances informing its
confusion analysis. It found that the existence of 10 trade-mark registrations
that contained the word "honey" owned by seven third parties supported
the inference that Ms. McDowell does not have a monopoly over the use of
"honey" in the personal care products sector. Ms. McDowell submits
that the Board was not entitled to draw this inference without supporting
evidence regarding the use of the word "honey" in the Canadian
marketplace, and without evidence of a significant number of relevant third
party registrations on the Register and in use.
42 State of the Register evidence is
relevant insofar as one can draw inferences from it regarding the state of the
marketplace. However, such inferences may only be drawn when there are a large
number of relevant registrations. The theory is that the presence of a common
element in marks causes purchasers to pay more attention to the other features
of the marks, and to distinguish between them by those other features: Kellogg
Salada Canada Inc. v. Canada (Registrar of Trade Marks), [1992] 3 F.C. 442,
, [1992] F.C.J. No. 562.
43 In Kellogg, there were at
least 47 trade mark registrations and 43 trade names, plus a further 18
trademark registrations after the filing date that contained the word
"Nutri" as part of the mark. In these circumstances, the Federal
Court of Appeal concluded that it could be inferred that consumers of the
products in question "are accustomed to making fine distinctions between
the various "Nutri" trade marks in the marketplace, by paying more
attention to any small differences between marks": at para. 15.
44 However, evidence of third party
trade-mark registrations with a common element is only significant where the
registered marks are commonly used in the market in question: Cie Gervais
Danone v. Astro Dairy Products Ltd., 160 F.T.R. 27 at para. 17, [1999]
F.C.J. No. 408 (F.C.T.D.). For an inference to be drawn that a word or element
is common to the trade, there must therefore be evidence of common use in the
marketplace by third parties: Cie Gervais, above at paras. 17-18; Kellogg,
above at para. 14.
45 The evidence before the Board was
that seven third parties had registered trade-marks that contained the word
"honey" in association with personal care products. The Board
correctly noted that this was not a large number of relevant registrations, but
went on to find that the existence of these registrations supported the
inference that Ms. McDowell did not have a monopoly over the use of the word
"honey" in the personal care products sector.
46 However, as Justice de Montigny noted
in Hawke & Company Outfitters LLC v. Retail Royalty Co., 2012 FC
1539 at para. 40, [2012] F.C.J. No. 1622, the fact that a mark appears on the
Register does not establish that it is currently in use, or that it was in use
as at the relevant material dates. Nor does it establish that the mark is used
in relation to wares or services that are similar to those of the parties, or
the extent of any such use. In the absence of any such evidence, the Board thus
erred in drawing an negative inference from the state of the Register.
[43]
I also find that the state of the Register does
not justify the TMOB drawing a negative inference.
F.
Non-Entitlement and Non-Distinctiveness
[44]
Based on my finding above, there is evidence of
use of the HONEY Marks in association with the HONEY Goods, and HONEY branded
goods and services in Canada as early as 2003. Therefore, the TMOB’s decision
regarding non-entitlement and non-distinctiveness cannot stand.
V.
Conclusion
[45]
Balancing the relevant confusion factors and
having regard to the surrounding circumstances, I find that the Applicant has
established, on a balance of probabilities, that there is a likelihood of
confusion between the HONEY Marks and the Respondent’s HONEYMANIA Mark.
[46]
The appeal is allowed and the TMOB’s decision is
set aside. The Registrar of Trade-marks is directed to refuse the registration
of the HONEYMANIA Application.
VI.
Costs
[47]
The Applicant is entitled to her costs, assessed
at Column III of Tariff B.
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