Ex-Centris Production v 9197-3396 Quebec Inc

The applicant, 9197-3396 Quebec Inc, sought to register a trade mark, while the opponent, Ex-Centris Production, opposed this application. The dispute concerned whether the applicant was the rightful owner of the trade mark in question. The decision was made by Bianca Irgang, a Hearing Officer at Trade Marks Hearings.

The primary legal issue before the court was whether the opponent had established a ground of opposition under section 58 of the relevant Act, which states that the registration of a trade mark may be opposed on the ground that the applicant is not the owner of the trade mark. To succeed on this ground, the opponent was required to demonstrate that their trade mark was identical or substantially identical to the applicant's, that their goods and services were of the same kind as those claimed by the applicant, and that they had an earlier claim to ownership based on authorship and use of their trade mark prior to the applicant's filing date and any actual use.

The Hearing Officer found that the trade marks were substantially identical, noting that both comprised the same words and that any minimal stylisation in the applicant's mark was insufficient to overcome the resemblance. Furthermore, the opponent's use of its trade mark for the production and promotion of music festivals and on plastic cups was considered to be of the same kind as the goods and services claimed by the applicant. The opponent had also demonstrated use of its substantially identical trade mark in Australia before the convention priority date of the applicant's trade mark.

Consequently, the Hearing Officer determined that the opponent had met the onus of proof regarding the ground of opposition under section 58. Accordingly, the Hearing Officer refused to register the applicant's trade mark application. Costs were awarded against the applicant in accordance with the usual practice.