We previously mentioned the statutory factors. Now is the time to deal with them in more detail.
Nature of the Trade
The fourth circumstance to be considered in determining whether trademarks or trade names are confusing is the nature of the trade. Matters to be considered include: the customs and usage of the trade, the nature of the markets, the channels of distribution, and how the trademarks are used.
This factor is concerned with the channels of trade or the relevant consumer markets in which the parties sell their goods or services. What is being sold, how and where it is sold, to whom it is sold, and the nature of the trading environment generally should be considered.
An attempt must be made to determine the attitude of the average reasonable person, or person of ordinary intelligence, who is buying the goods or services in question. The reaction of an unwary or hurried purchaser or the foolish or unobservant person should not be considered unless there are special circumstances.
The trademarks are to be compared as used in business and as they will be recalled by imperfect recollection. They should not be viewed as samples presented, side by side, for critical examination. An assessment of the future sales operations of a company should not include speculation about possible ventures. The actual channels of distribution are a preferable basis on which to determine the likelihood of confusion.
Potential confusion is reduced where the purchasers are professionals, acting in their business, who are likely to exercise more care in making a purchase. Similar considerations may apply to the wholesale trade as opposed to the retail trade, or when a different niche market is involved. However, the question is not whether the parties in issue sell their products in the same channels but whether they have the right to do so.
If you have questions, please contact me at mckeown@gsnh.com
Goldman Sloan Nash & Haber LLP 480 University Avenue, Suite 1600 Toronto, Ontario M5G 1V2 Direct Line: (416) 597-3371 Fax: (416) 597-3370 Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
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