Disponible uniquement en anglais
Christopher Pibus and James Green (Gowlings Lafleur Henderson LLP) for the Applicant
No one appeared for the Respondent
Micro Focus (IP) Limited appealed a decision of the Trade-marks Opposition Board which had refused its application for MICRO FOCUS on the basis of being confusing with the respondents’ FOCUS mark.
The Applicant introduced fresh evidence on the appeal showing extensive use since 1989 which, the Court found, would have materially affected the Board’s conclusion on confusion because it shows acquired distinctiveness and reputation in Canada.
The Court found that there were many registered marks using the word “Focus” for computer software and services which shows a lack of inherent distinctiveness and that consumers look to other cues to distinguish between products and services.
The evidence of use showed extensive advertising by the applicant and no use by the respondent since 2007. The Applicant’s software product targets programmers, managers and IT professionals while the respondent aimed at non-programmers.
There was no evidence of actual confusion and the parties had admitted that in a 2000 co-existence agreement.
Since there was no reasonable likelihood of confusion between the marks, the appeal was allowed with costs and the Applicant was permitted to register its MICRO FOCUS mark.
By: Alan Macek, Dimock Stratton LLP