More On Famous Mark Protection in Canada

Tue, 18 Jul 2006 13:45:00 EST

Stikeman Elliott LLP has more to say about the Supreme Court of Canada's rulings rejecting that there is an inverse relationship between the deminishing connection of wares and services and the strength of a mark. That is, that the importance of the connection between wares and services as stated in 6(5) of the TMA is of less importance as the strength of the mark increases.

"The SCC affirmed that there does not need to be any resemblance or linkage to the wares or services associated with the marks in question for confusion to occur. On the other hand, the mere fact that a trade-mark is famous does not mean that there does not need to be any linkage between the wares or services in question. In short, the SCC affirmed that fame is not a factor that trumps all other factors in the Section 6(5) analysis: 'a difference in wares or services does not deliver the knockout blow, but nor does the fame of the trade-mark. Each situation must be judged in its full factual context.'"

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