Trademarks Act

Marginal note:When mark or name confusing

• 6 (1) For the purposes of this Act, a trademark or trade name is confusing with another trademark or trade name if the use of the first mentioned trademark or trade name would cause confusion with the last mentioned trademark or trade name in the manner and circumstances described in this section.

• Marginal note:Confusion — trademark with other trademark

  (2) The use of a trademark causes confusion with another trademark if the use of both trademarks in the same area would be likely to lead to the inference that the goods or services associated with those trademarks are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class or appear in the same class of the Nice Classification.

• Marginal note:Confusion — trademark with trade name

  (3) The use of a trademark causes confusion with a trade name if the use of both the trademark and trade name in the same area would be likely to lead to the inference that the goods or services associated with the trademark 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 goods or services are of the same general class or appear in the same class of the Nice Classification.

• Marginal note:Confusion — trade name with trademark

  (4) The use of a trade name causes confusion with a trademark if the use of both the trade name and trademark in the same area would be likely to lead to the inference that the goods or services associated with the business carried on under the trade name and those associated with the trademark are manufactured, sold, leased, hired or performed by the same person, whether or not the goods or services are of the same general class or appear in the same class of the Nice Classification.

• Marginal note:What to be considered

  (5) In determining whether trademarks 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 trademarks or trade names and the extent to which they have become known;

  • (b) the length of time the trademarks 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, including in appearance or sound or in the ideas suggested by them.