Advance Magazine Publishers Inc. v. Farleyco Marketing Inc., (2009) 398 N.R. 263 (FCA)
| Judge | Blais, C.J., Noël and Layden-Stevenson, JJ.A. |
| Court | Federal Court of Appeal (Canada) |
| Case Date | November 30, 2009 |
| Jurisdiction | Canada (Federal) |
| Citations | (2009), 398 N.R. 263 (FCA);2009 FCA 348 |
Advance Magazine v. Farleyco Marketing (2009), 398 N.R. 263 (FCA)
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Temp. Cite: [2009] N.R. TBEd. DE.026
Advance Magazine Publishers Inc. (appellant) v. Farleyco Marketing Inc. (respondent)
(A-132-09; 2009 FCA 348)
Indexed As: Advance Magazine Publishers Inc. v. Farleyco Marketing Inc.
Federal Court of Appeal
Blais, C.J., Noël and Layden-Stevenson, JJ.A.
November 30, 2009.
Summary:
Farleyco Marketing Inc. applied to register the trademark "GHOULISH GLAMOUR" to be used in association with "Halloween cosmetics and eyelash accessories". Advance Magazine Publishers Inc. opposed registration based on its longstanding trademark for "GLAMOUR" which was registered for use in association with a periodical magazine and a variety of related print and electronic wares and services. The Registrar of Trademarks found that Advance had not met the onus required by s. 16(3) of the Trade-marks Act for its opposition to Farleyco's trademark application for "GHOULISH GLAMOUR". Advance appealed.
The Federal Court, in a decision reported 342 F.T.R. 224, dismissed the appeal. Advance appealed again.
The Federal Court of Appeal dismissed the appeal.
Trademarks, Names and Designs - Topic 706
Trademarks - Registration - General - Conditions precedent - Lack of confusion with other marks - Farleyco Marketing Inc. applied to register the trademark "GHOULISH GLAMOUR" to be used in association with "Halloween cosmetics and eyelash accessories" - Advance Magazine Publishers Inc. opposed registration based on its longstanding trademarks for "GLAMOUR" which was registered for use in association with a periodical magazine and a variety of related print and electronic wares and services - The Registrar of Trademarks found that Advance had not met the onus required by s. 16(3) of the Trade-marks Act for its opposition to Farleyco's trademark application - Advance appealed - The Federal Court, considering the matter anew on the basis of new evidence, agreed that Farleyco had discharged its burden of proving, on a balance of probabilities, that confusion between the marks was unlikely - The court, therefore, dismissed the appeal - Advance appealed again - The Federal Court of Appeal dismissed the appeal.
Statutes Noticed:
Trade-marks Act, R.S.C. 1985, c. T-13, sect. 16(3) [para. 3].
Counsel:
Kenneth D. McKay, for the appellant;
Brian W. Gray, Cynthia D. Mason and Amy Grenon, for the respondent.
Solicitors of Record:
Sim, Lowman, Ashton & McKay LLP, Toronto, Ontario, for the appellant;
Ogilvy Renault LLP, Toronto, Ontario, for the respondent.
This appeal was heard in Toronto, Ontario, on November 30, 2009, before Blais, C.J., Noël and Layden-Stevenson, JJ.A., of the Federal Court of Appeal. The following decision was delivered from the bench, for the court, by Noël, J.A., on November 30, 2009.
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Trade-marks
...H(3), “Dilution,” in this chapter). To similar effect: Advance Magazine Publishers Inc. v. Farleyco Marketing Inc. , 2009 FC 153, aff’d 2009 FCA 348 (GLAMOUR magazine opposition to registration of GHOULISH GLAMOUR for Halloween cosmetics fails: readers would not believe the magazine had got......
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Table of Cases
...546 Advance Magazine Publishers Inc. v. Farleyco Marketing Inc., 2009 FC 153, 342 F.T.R. 22, 72 C.P.R. (4th) 96, aff’d 2009 FCA 348, 398 N.R. 263, 80 C.P.R. (4th) 324 ...................................................................................... 538 Advantage-Rent-A-Car Inc. v. Adva......
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Procter & Gamble Inc. v. Colgate-Palmolive Canada Inc., 2010 FC 231
...case because the opponent did not satisfy its initial evidentiary burden. This case was recently affirmed by the Federal Court of Appeal (2009 FCA 348). The question of whether or not an opponent has satisfied its evidentiary burden is a subjective test and not an objective one and the Appl......
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Anterra Wines Canada, Inc. v. Diageo North America, Inc., 2020 FC 508
...at para 54, aff’d 2013 FCA 6; Advance Magazine Publishers Inc v Farleyco Marketing Inc, 2009 FC 153 [Farleyco] at paras 93-95, 98, aff’d 2009 FCA 348. [29] To trigger a de novo review pursuant to TMA s 56(5), however, the new evidence must be “sufficiently substantial and significant; … evi......
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Procter & Gamble Inc. v. Colgate-Palmolive Canada Inc., 2010 FC 231
...case because the opponent did not satisfy its initial evidentiary burden. This case was recently affirmed by the Federal Court of Appeal (2009 FCA 348). The question of whether or not an opponent has satisfied its evidentiary burden is a subjective test and not an objective one and the Appl......
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Anterra Wines Canada, Inc. v. Diageo North America, Inc., 2020 FC 508
...at para 54, aff’d 2013 FCA 6; Advance Magazine Publishers Inc v Farleyco Marketing Inc, 2009 FC 153 [Farleyco] at paras 93-95, 98, aff’d 2009 FCA 348. [29] To trigger a de novo review pursuant to TMA s 56(5), however, the new evidence must be “sufficiently substantial and significant; … evi......
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Trade-marks
...H(3), “Dilution,” in this chapter). To similar effect: Advance Magazine Publishers Inc. v. Farleyco Marketing Inc. , 2009 FC 153, aff’d 2009 FCA 348 (GLAMOUR magazine opposition to registration of GHOULISH GLAMOUR for Halloween cosmetics fails: readers would not believe the magazine had got......
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Table of Cases
...546 Advance Magazine Publishers Inc. v. Farleyco Marketing Inc., 2009 FC 153, 342 F.T.R. 22, 72 C.P.R. (4th) 96, aff’d 2009 FCA 348, 398 N.R. 263, 80 C.P.R. (4th) 324 ...................................................................................... 538 Advantage-Rent-A-Car Inc. v. Adva......