Joey Tomato’s (Canada) Inc. (“Joey”), the company behind the well-known JOEY restaurant chain, won a recent trademark victory in Canada.
Joey registered the LOCAL trademark in 2013 for use with restaurant, bar and lounge services as well as various beverageware goods. In 2014, another entity (1786325 Ontario Ltd) filed an application for the trademark “LOCALE and Design” which featured the silhouette of a rooster, and which was also for use with restaurant services and promotional items, including glassware. Joey opposed the LOCALE & Design application on the basis of, among other things, confusion with its prior mark.
The test for confusion is whether, as a matter of first impression, the average Canadian consumer with an imperfect recollection of one mark is likely to be confused upon encountering the other party’s mark.
In this case, the Canadian Trademark Opposition Board found that there was a high degree of resemblance between “LOCAL” and “LOCALE”, both visually and phonetically. The overlapping goods and services also increased the likelihood for confusion and lead a typical Canadian consumer to assume that the parties’ restaurant goods and services share a common source. Accordingly, 1786325 Ontario Ltd.’s application was refused.
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