LE REGISTRAIRE DES MARQUES DE COMMERCE
THE REGISTRAR OF TRADE-MARKS
Citation: 2012 TMOB 188
Date of Decision: 2012-10-05
IN THE MATTER OF OPPOSITIONS by The Hospital for Sick Children to application Nos. 1,378,945 and 1,378,948 and 1,378,950 for the trade-marks IMPOWERAGE and POWERMED and IMPOWERKIDS in the name of CK Impower Strategies Inc.
[1] On January 11, 2008, CK Impower Strategies Inc. (the Applicant) filed applications to register the trade-marks IMPOWERAGE, IMPOWERMED and IMPOWERKIDS (the Marks) based on proposed use in Canada in association with the following wares and services:
1,378,945
Wares:
(1) Audio CDs containing educational materials, instructional materials, and recordings of seminars, each in the field of empowerment to the elderly and the retired population to improve their motivation, health and wellness and to celebrate their wisdom and experience; books and period newsletters in printed and electronic format.
(2) T-shirts, mugs, hats, pens, golf balls, waterbottles.
Services:
(1) Consulting services in the areas of instruction, education, seminars, empowerment, and organization services, all provided to elderly and retired people to improve their motivation and celebrate their wisdom and experience.
(2) Internet services, namely, web-seminars, podcasts, blogs, and interactive websites all in the fields of instruction, education, and coaching, each to empower the elderly and the retired population to improve their motivation, health and wellness and to celebrate their wisdom and experience.
1,378,948
Wares:
(1) Audio CDs containing educational materials, instructional materials, and recordings of seminars, each in the fields of empowerment to medical practices to improve the financial status of physicians, administrators, nurses and Health related businesses and to help them reach their personal and corporate goals; books and period newsletters in printed and electronic format.
(2) T-shirts, mugs, hats, pens, golf balls, and waterbottles.
Services:
(1) Consulting services in the areas of instruction, education, coaching, seminars, empowerment, and organization services, all provided to medical practices to improve their financial status and empower their physicians and administrators to reach their personal and corporate goals.
(2) Internets [sic] services, namely, web-seminars, podcasts, blogs, and interactive websites all in the fields of instruction, education, and coaching, each to empower medical practices to improve their financial status and empower physicians, administrators, nurses, and Health related businesses to reach their personal and corporate goals.
1,378,950
Wares:
(1) Audio CDs containing educational materials, instructional materials, and recordings of seminars, each in the field of empowerment to children to reach their personal goals; books and period newsletters in printed and electronic format.
(2) T-shirts, mugs, hats, pens, golf balls, waterbottles, stuffed animals.
Services:
(1) Consulting services in the areas of instruction, education, coaching, seminars, empowerment, and organization services, all provided to children to empower them to reach their personal goals.
(2) Internet services, namely, web –seminars, podcasts, blogs, and interactive websites all in the fields of instruction, education, and coaching, each to empower children to reach their personal goals.
[2] The applications were advertised for opposition purposes in the Trade-marks Journal of January 28, 2009.
[3] On July 7, 2009, The Hospital for Sick Children (the Opponent) filed a statement of opposition against each application. The Opponent was granted leave on August 22, 2012 to file an amended statement of opposition dated July 5, 2012 for each file. The grounds of opposition can be summarized as follows:
• pursuant to sections 38(2)(b) and 12(1)(d) of the Trade-marks Act, R.S.C. 1985, c. T-13 (the Act), the Marks are not registrable on the basis that they are confusing with the Opponent’s registered trade-marks empower & design (TMA763,587), shown below, and EMPOWER (TMA763,589) (the Opponent’s EMPOWER Marks) both registered for the wares “educational goods, namely, flash cards, student readers, student work books, teacher instructional books, teachers guides, presentation books, bulletin boards, posters, lesson plans, evaluation and assessment pamphlets, parent training guides, brochures and books in the fields of health care, education and literacy; educational goods, namely, board games, pre-registered DVD's and videos, classroom teaching aids and classroom exercise activities all used for educational and training purposes in the fields of healthcare, education and literacy” and the services “educational services, providing literacy and health-related education, teacher training; operation of a website providing information in the fields of health care, education and literacy” (the Opponent’s Wares and Services).
• Pursuant to sections 38(2)(c) and 16(3)(a) of the Act, the Applicant is not entitled to registration of the Marks as, at the date of filing the applications for the Marks the Marks were confusing with the Opponent’s EMPOWER Marks which have been previously used by the Opponent.
• Pursuant to sections 38(2)(c) and 16(3)(b) of the Act, the Applicant is not entitled to registration of the Marks as, at the date of filing the applications for the Marks the Marks were confusing with the Opponent’s previously filed applications for the Opponent’s EMPOWER Marks.
• Pursuant to sections 38(2)(d) and 2, in view of the facts set out in the other grounds of opposition, the Marks cannot be distinctive of the Applicant.
[4] For each application, the Applicant served and filed a counter statement in which it denied the Opponent’s allegations and put the Opponent to the strict proof thereof.
[5] The same evidence was filed for all three oppositions.
[6] In support of its oppositions, the Opponent filed two affidavits of Elenito Anastacio, a trade-mark searcher employed by the Opponent’s agent. One affidavit was sworn January 4, 2010 and filed pursuant to section 41 of the Trade-marks Regulations SOR/96-195 (the Regulations); the other was sworn July 5, 2012 and made of record on August 22, 2012 pursuant to a grant of leave under section 44 of the Regulations.
[7] In support of its applications, the Applicant filed an affidavit of Aleksandra Rennebohm, an articling student employed by the Applicant’s agent, sworn March 12, 2010. Ms. Rennebohm was cross-examined on her affidavit on October 21, 2010; transcript filed November 22, 2010.
[8] Only the Applicant filed a written argument. An oral hearing was held at which both parties were represented.
Onus and Material Dates
[9] The Applicant bears the legal onus of establishing, on a balance of probabilities, that its applications comply with the requirements of the Act. However, there is an initial evidential burden on the Opponent to adduce sufficient admissible evidence from which it could reasonably be concluded that the facts alleged to support each ground of opposition exist [see John Labatt Limited v The Molson Companies Limited (1990), 30 CPR (3d) 293 (FCTD) at 298].
[10] The material dates that apply to the grounds of opposition are as follows:
• sections 38(2)(b)/12(1)(d) - the date of my decision [see Park Avenue Furniture Corporation v Wickes/Simmons Bedding Ltd and The Registrar of Trade Marks (1991), 37 CPR (3d) 413 (FCA)]
• sections 38(2)(c)/16(3)(a) and (b) - the date of filing the applications for the Marks [see section 16(3) of the Act].
• sections 38(2)(d)/2 - the date of filing of the oppositions [see Metro-Goldwyn-Mayer Inc v Stargate Connections Inc (2004), 34 CPR (4th) 317 (FC)].
Non-registrability Ground – Section 12(1)(d) of the Act
[11] At the oral hearing, the Applicant submitted that the Opponent had failed to meet its evidential burden for this ground of opposition. Specifically, the Applicant submitted that the Opponent was under an obligation to provide evidence of use and reputation for its EMPOWER Marks in order to meet its evidential burden under this ground. While it is certainly helpful for an opponent to provide such evidence, it is not necessary in order for it to meet its evidential burden under section 12(1)(d) of the Act. Rather, an opponent’s initial onus is met with respect to a section 12(1)(d) ground of opposition if one or more of the registrations relied upon are in good standing as of the date of the opposition decision. The Registrar has discretion to check the register in order to confirm the existence of the registration(s) relied upon by an opponent [see Quaker Oats of Canada Ltd/La Compagnie Quaker Oats du Canada Ltée v Menu Foods Ltd (1986), 11 CPR (3d) 410 (TMOB)]. I have exercised that discretion and confirm that the registrations for the Opponent’s EMPOWER Marks remain valid. Therefore the Opponent has satisfied its evidential burden. I must now assess whether the Applicant has met its legal burden.
[12] The test for confusion is one of first impression and imperfect recollection. Section 6(2) of the Act indicates that use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the wares or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person, whether or not the wares or services are of the same general class.
[13] In applying the test for confusion, the Registrar must have regard to all the surrounding circumstances, including those specifically enumerated in section 6(5) of the Act, namely: (a) the inherent distinctiveness of the trade-marks and the extent to which they have become known; (b) the length of time each has been in use; (c) the nature of the wares, services or business; (d) the nature of the trade; and (e) the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested by them. These enumerated factors need not be attributed equal weight. [See, in general, Mattel, Inc v 3894207 Canada Inc (2006), 49 CPR (4th) 321 (SCC) and Masterpiece Inc v Alavida Lifestyles Inc (2011), 92 CPR (4th) 361 (SCC).]
Section 6(5)(a) – the inherent distinctiveness of the trade-marks and the extent to which they have become known
[14] The Applicant submits that the Opponent’s EMPOWER Marks are decidedly weak marks that are not inherently distinctive because they are essentially a dictionary word and thus deserving of a narrow ambit of protection. In support of this the Applicant filed a printout from an online dictionary as evidence of the definition of the word “empower”. I may also refer myself to a dictionary to determine the meaning of words [see Insurance Co of Prince Edward Island v Prince Edward Island Insurance Co (1999), 2 CPR (4th) 103 (TMOB)]. The Canadian Oxford Dictionary defines “empower” as “provide with the means, opportunity, etc. necessary for independence, self-assertion, etc.”
[15] The Opponent submits that the word “empower” is not in and of itself descriptive of all of the Opponent’s Wares and Services. In view that the Opponent’s registrations cover educational goods and services, I find that the word EMPOWER is at least suggestive of the Opponent’s Wares and Services.
[16] The Opponent submits that the prefix of the Marks, IMPOWER, while a coined word is very similar in sound, if not phonetically equivalent to the word EMPOWER. I agree. Furthermore, the Opponent submits, and I agree, that the word EMPOWER is also suggestive of the Wares and Services as they specifically reference the notion of empowerment.
[17] The Applicant submits that the Marks are all coined words and that this should automatically result in a finding that they are inherently distinctive and deserving of a wide ambit of protection. While I agree that the Marks are coined words, I have already found that the prefix of the Marks is suggestive of the nature of the Wares and Services. Furthermore, I find that the suffix of each of the Marks is suggestive of the subject matter of the target market for the associated wares and services. Specifically “AGE” is suggestive of the fact that the IMPOWERAGE trade-mark is targeted to the elderly; “MED” of the fact that the IMPOWERMED trade-mark is targeted to medical professionals and “KIDS” of the fact that the IMPOWERKIDS trade-mark is targeted to children.
[18] Based on the foregoing, I find that the Marks possess a greater degree of inherent distinctiveness than the Opponent’s EMPOWER Marks by virtue of the fact that the Marks are coined words and the Opponent’s Marks are made up of a dictionary word which is suggestive of the associated wares and services. However, neither party’s marks are particularly inherently strong.
[19] A trade-mark may acquire distinctiveness through use or promotion. However, in the present case neither party has filed evidence to show use or promotion of its marks. While it is true that the Opponent’s registrations issued subsequent to the filing of declarations of use on March 15, 2010, at most this entitles me to assume de minimis use of the Opponent’s EMPOWER Marks [see Entre Computer Centers Inc. v. Global Upholstery Co. (1991), 40 CPR (3d) 427 (T.M.O.B.) at 430]. De minimis use does not support a conclusion that the Opponent’s EMPOWER Marks had become known to any significant extent.
Section 6(5)(b) – the length of time each has been in use
[20] The applications for the Marks were all filed based on proposed use and the Applicant has not filed any evidence of use of the Marks.
[21] As discussed further above in the analysis of the section 6(5)(a) factor, the Opponent’s registrations enable me to assume de minimus use of the Opponent’s EMPOWER Marks. While it may be true that de minimis use is more than no use, in the absence of evidence of use of either party’s marks, this factor does not significantly favour either party.
Sections 6(5)(c) and (d) – the nature of the wares, services or business and trade
[22] It is the Applicant’s statement of wares and services as defined in its application versus the Opponent’s registered wares and services that govern my determination of this factor [see Esprit International v Alcohol Countermeasure Systems Corp (1997), 84 CPR (3d) 89 (TMOB)].
[23] The parties take differing views on the degree of similarity between the parties’ wares and services. The Opponent submits that, with the exception of Wares 2, the parties’ wares and services are overlapping if not identical. By contrast, the Applicant submits that the Wares and Services are significantly different from the Opponent’s Wares and Services. In support of this submission the Applicant summarized the nature of the Wares and Services as follows: audio CDs containing educational materials, instructional materials and seminars as well as consulting and internet services all of which are for the purpose of empowering healthcare professionals to maximize their financial success; the elderly to maximize their enjoyment of life or children to reach their goals. The Applicant then summarized the Opponent’s Wares and Services as being exclusively educational and only directed towards teachers or healthcare professionals. Based on the foregoing, the Applicant submitted that the parties’ wares and services were entirely distinct. In further support of this position, the Applicant submitted that the nature of the Opponent’s business as a hospital for sick children is inherently different from the Applicant’s target markets (health professionals, the elderly, healthy children).
[24] Considering both parties’ submissions and the statements of wares and services as a whole, I find that there is some degree of overlap between the parties’ wares and services in the form of the Applicant’s educational materials (Wares 1) and the Applicant’s Internet services (Services 2) which I find to be similar to the Opponent’s educational materials and operation of a website.
[25] As admitted by the Opponent at the oral hearing, there is no similarity between Wares 2 and any of the Opponent’s Wares and Services. While some of the Applicant’s consulting services (Services 1) relate to education, I find this connection to be tenuous at best.
[26] Based on the foregoing, I find that there is some degree of similarity between the parties’ wares and services but only with respect to Wares 1 and Services 2.
[27] Neither party has filed any evidence regarding the nature of the parties’ trades. In the absence of evidence on this point, and given the overlap in the nature of the parties’ wares and services with respect to Wares 1 and Services 2, I find it reasonable that there could also be an overlap in the nature of the parties’ channels of trade for these wares and services. I cannot make the same inference with respect to Wares 2 and Services 1 due to the lack of similarity in the nature of the wares and services.
Section 6(5)(e) – the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested by them
[28] In most instances, the degree of resemblance between the trade-marks in appearance or sound or in the ideas suggested is the dominant factor and other factors play a subservient role in the overall surrounding circumstances [see Beverly Bedding & Upholstery Co v Regal Bedding & Upholstery Ltd (1980), 47 CPR (2) 145, conf 60 CPR (2d) 70 (FCTD)]. This principle was recently upheld by the Supreme Court of Canada in Masterpiece, supra.
[29] Both parties agree that in assessing the degree of resemblance between the parties’ marks they must not be dissected and must be considered as a whole and as a matter of first impression by the average person, not someone skilled in semantics [see Masterpiece, supra]. Furthermore, both parties agree that this does not mean that a dominant component which would affect the overall impression should be ignored [see Masterpiece, supra]. However, the parties differ in their applications of these principles to the facts of the present case.
[30] The Opponent submits that the dominant element of the parties’ marks is the IMPOWER/EMPOWER element which the Opponent submits is phonetically equivalent as between the parties’ marks thus creating significant similarity in sound and idea suggested between the parties’ marks.
[31] The Applicant submits that in light of the different and unique spelling of the IMPOWER element of the Marks, the average consumer will be drawn to the differences between the parties’ marks, namely the different spelling of the IMPOWER element and the additional suffixes. The Applicant submits that this creates significant differences between the parties’ marks in terms of sound, appearance and ideas suggested.
[32] Having reviewed both parties’ submissions and the trade-marks as a whole, I agree with the Opponent that the dominant element of the parties’ marks is the EMPOWER/IMPOWER element and that the only difference between the dominant element is the substitution of an “I” for the “E” such that the first portion of the parties’ marks is essentially phonetically equivalent. This results in similarities between the ideas suggested by both parties’ marks since they both suggest the notion of empowerment, or providing individuals with the means or opportunity necessary for achieving independence or self-assertion.
[33] The suffixes of the Marks do serve to create some differences between the parties’ marks. However, these suffixes are not particularly distinctive because, as previously noted, they are suggestive of the target market for each of the Marks.
Additional Surrounding Circumstance – State of the Register and Marketplace Evidence
[34] In her affidavit, Ms. Rennebohm purports to provide state of the register evidence for the terms “empower” and “impower”. On cross-examination the Opponent challenged Ms. Rennebohm’s credentials to provide such evidence in light of her lack of experience with or knowledge of the Canadian Intellectual Property Office (CIPO) Trade-marks Database. I am willing to accept that the CIPO Trade-marks Database is a reliable electronic resource and I accept Ms. Rennebohm’s search results as being representative of the state of the Canadian trade-marks register for the terms “empower” and “impower” at the date she conducted her search.
[35] When analyzing the relevance of state of the register evidence, it must be noted that such evidence will only be relevant insofar as one can make inferences from it about the state of the marketplace. Inferences about the state of the marketplace can only be drawn where large numbers of relevant registrations are located [see Ports International Ltd v Dunlop Ltd (1992), 41 CPR (3d) 432; Del Monte Corporation v Welch Foods Inc (1992), 44 CPR (3d) 205 (FCTD); Kellogg Salada Canada Inc v Maximum Nutrition Ltd (1992), 43 CPR (3d) 349 (FCA)].
[36] I note that a number of the entries found in Ms. Rennebohm’s search are for pending applications which had not yet proceeded to allowance. Only registered trade-marks or applications which have proceeded to allowance are relevant to a determination of whether the word “empower” or “impower” has become common to the trade in Canada.
[37] The Applicant submitted that the state of the register evidence supports a finding that the words “empower” and/or “impower” are used by a number of third parties in association with a number of trade-marks for a wide variety of wares and services. Having reviewed Ms. Rennebohm’s search results, I found approximately 24 registrations or allowed applications which incorporate the word “empower” or “impower” for use in association with a variety of wares and services, most of which are unrelated to the wares and services of the parties to the present opposition proceeding.
[38] The Opponent submitted that only four or five of the entries in Ms. Rennebohm’s search results have some marginal similarity to the wares and services at issue and would thus be relevant. The Opponent submitted that the majority of the marks found in Ms. Rennebohm’s search were totally irrelevant to the issues in the present opposition proceeding as they deal with totally unrelated wares and services. Furthermore, the Applicant has not filed any evidence of use of any of the marks located in the search and with such a small number of relevant entries, no inferences can be made about the state of the marketplace.
[39] Relying on Wrangler Apparel Corp v Big Rock Brewery Partnership (2009), 72 C.P.R. (4th) 16 (TMOB); aff’d (2010), 83 CPR (4th) 297 (FC), the Applicant submits that the state of the register evidence is relevant regardless of whether or not the wares and services associated with the entries are similar to the wares and services of the parties. In Wrangler 13 registrations and one allowed application for various wares and services belonging to six different owners were found on the register. The Registrar found that the evidence supported a finding that the Opponent did not have an exclusive monopoly on the word WRANGLER in association with any and all wares and services. However, the Registrar was not willing to make any significant inferences about the state of the marketplace and ultimately did not consider the state of the register evidence as a necessary circumstance in order to find in the applicant’s favour.
[40] In the present case, I would be willing to make the same finding as in Wrangler, namely that the Opponent has not established a monopoly on the word EMPOWER in association with any and all wares and services. However, I am not willing to make an inference that the word EMPOWER is common in the Canadian marketplace such that consumers would be accustomed to making distinctions between marks and pay more attention to the differences between the marks.
[41] Based on the foregoing, I am not satisfied that the state of the register evidence creates a relevant surrounding circumstance which supports the Applicant’s position.
Additional Surrounding Circumstance – Manner of Use of the Mark
[42] At the oral hearing, the Opponent submitted that should the Applicant obtain registration for the Marks it would be permitted to use the Marks in any way they wished. As a result, the Applicant could choose to use the Marks in a manner that highlighted the IMPOWER element and downplayed the AGE, MED and KIDS elements, thereby increasing the likelihood of confusion between the parties’ marks. In support of this position, the Opponent pointed to paragraph 58 of Masterpiece:
The problem with an analysis which takes into account limited use becomes apparent by observing that the bare words “Masterpiece Living” could be presented in many ways under the registration. Nothing would prevent Alavida from altering its advertising to highlight the word “Masterpiece” and give the word “Living” less prominence, just as Masterpiece Inc. had done, or from changing the font or style of lettering that it had used.
[43] I need not consider this as an additional surrounding circumstance in light of my finding in the analysis of the section 6(5)(e) factor that the parties’ marks share a significant degree of similarity by virtue of the fact that the dominant and striking element of the parties’ marks, EMPOWER/IMPOWER, is very similar in appearance and essentially phonetically equivalent.
Conclusion
[44] In applying the test for confusion I have considered it as a matter of first impression and imperfect recollection. Having regard to the above, I find that the balance of probabilities is evenly balanced between a finding of confusion between the parties’ marks and a finding of no confusion with respect to Wares 1 and Services 2. As the onus is on the Applicant to establish on a balance of probabilities that the Marks are not confusing with one or more of the Opponent’s EMPOWER Marks, I must decide against the Applicant with respect to Wares 1 and Services 2.
[45] With respect to Wares 2 and Services 1, the difference in the nature of the wares and services serves to shift the balance of probabilities in favour of the Applicant and I reject the ground of opposition based on section 12(1)(d) of the Act with respect to Wares 2 and Services 1.
Non-entitlement Grounds of Opposition
Section 16(3)(a) of the Act
[46] Despite the onus of proof on the Applicant to establish, on a balance of probabilities, that there is no reasonable likelihood of confusion between the Marks and the Opponent’s EMPOWER Marks, the Opponent has the initial onus of proving that one or more of the trade-marks alleged in support of its ground of opposition based on section 16(3)(a) of the Act was used in Canada prior to the date of filing the applications for the Marks (January 11, 2008) and had not been abandoned at the date of advertisement of the applications for the Marks (January 28, 2009) [section 16(5) of the Act].
[47] The Opponent has not filed any evidence showing use of its EMPOWER Marks. Moreover, any reference to use in the Opponent’s applications or registrations is not sufficient to satisfy the Opponent's evidential burden under section 16(3)(a) of the Act [see Rooxs, Inc v Edit-SRL (2002), 23 CPR (4th) 265 (TMOB)].
[48] Based on the foregoing, the Opponent has failed to meet its evidential burden under section 16(3)(a) of the Act and this ground of opposition is dismissed accordingly.
Section 16(3)(b) of the Act
[49] Despite the burden of proof on the Applicant to establish, on a balance of probabilities, that there is no reasonable likelihood of confusion between the Mark and the Opponent’s EMPOWER Marks, the Opponent has the initial onus of proving that one or more of the trade-mark applications alleged in support of its ground of opposition based on section 16(3)(b) of the Act was pending at the date of filing the applications for the Marks, and remained pending at the date of advertisement of the applications for the Marks, January 28, 2009 [section 16(5) of the Act]. The Registrar has the discretion, in view of the public interest, to check the register for applications relied upon by an opponent [see Royal Appliance Mfg Co v Iona Appliance Inc (1990), 32 CPR (3d) 525 (TMOB)]. I have exercised my discretion to check the status of the applications cited by the Opponent and confirm that both applications were filed prior to the filing date and remained pending at the advertisement date (despite the fact that they have since matured to registration).
[50] The difference in material dates is not significant and as a result my findings under the ground of opposition based on section 12(1)(d) of the Act are equally applicable here. As a result, I find that the balance of probabilities is evenly balanced between a finding of confusion between the parties’ marks and a finding of no confusion with respect to Wares 1 and Services 2. As the onus is on the Applicant to establish on a balance of probabilities that the Marks are not confusing with one or more of the Opponent’s EMPOWER Marks, I must decide against the Applicant with respect to Wares 1 and Services 2.
[51] With respect to Wares 2 and Services 1, the difference in the nature of the wares and services serves to shift the balance of probabilities in favour of the Applicant and I reject the ground of opposition based on section 16(3)(b) of the Act with respect to Wares 2 and Services 1.
Non-distinctiveness Ground – section 38(2)(d) of the Act
[52] While there is a legal onus on the Applicant to show that the Marks are adapted to distinguish or actually distinguish its Wares and Services from those of others throughout Canada [see Muffin Houses Incorporated v The Muffin House Bakery Ltd. (1985), 4 CPR (3d) 272 (TMOB)], there is an initial evidential burden on the Opponent to establish the facts relied upon in support of the ground of non-distinctiveness.
[53] Pursuant to its evidential burden, the Opponent is under an obligation to show that, as of the filing of the statement of opposition, one or more of its EMPOWER Marks had become known sufficiently to negate the distinctiveness of the Marks [see Bojangles’ International, LLC v Bojangles Café Ltd. (2004), 40 CPR (4th) 553, affirmed (2006), 48 CPR (4th) 427 (FC)].
[54] As discussed more fully above in the analysis of the section 16(3)(a) ground of opposition, the Opponent has failed to provide any evidence of use or reputation for the EMPOWER Marks and as a result, the Opponent has failed to meet its evidential burden and this ground of opposition is dismissed.
Disposition
[55] Pursuant to the authority delegated to me under section 63(3) of the Act, I refuse the applications for the Marks with respect to Wares 1 and Services 2 and I reject the oppositions with respect to Wares 2 and Services 1 pursuant to section 38(8) of the Act [see Produits Menagers Coronet Inc v Coronet-Werke Heinrich Schlerf Gmbh (1986), 10 CPR (3d) 492 (FCTD) as authority for a split decision].
______________________________
Andrea Flewelling
Member
Trade-marks Opposition Board
Canadian Intellectual Property Office