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Degree of Care is a Relevant Consideration in Assessing Javelo Likelihood of Confusion

On April 20, 2020, the Federal Court of Appeal dismissed Clorox’s appeal from a decision of Justice Grammond of the Federal Court upholding the Trademarks Opposition Board’s decision rejecting Clorox’s opposition to two trademark applications filed by Chloretec.

In January 2012, Chloretec filed trademark applications to register the trademark JAVELO and the design trademark


on the basis of proposed use in association with liquid bleach.

Clorox opposed the applications on the grounds that they were contrary to section 2, paragraphs 12(1)(d), and 16(3)(a) and (b), and section 50 of the Trademarks Act. One of Clorox’s arguments was that Chloretec’s use of the JAVELO trademarks was likely to cause confusion with  a number of  registered JAVEX trademarks.

In February 2016, the Opposition Board rejected Clorox’s opposition to the JAVELO trademarks and concluded that they did not lead to a likelihood of confusion with the JAVEX trademarks.

Clorox appealed the Opposition Board’s decision to the Federal Court, arguing, among other things, that the Opposition Board erred when it found that the JAVELO trademarks were not likely to cause confusion with the JAVEX trademarks. The Federal Court dismissed Clorox’s appeal in April 2018.

On the issue of confusion, Justice Grammond held that there was no confusion between the parties’ trademarks as the degree of resemblance between the two was low:

[41]  We are now returning to the basic issue: Would a hurried consumer who only vaguely remembers the “Javex” mark conclude that a product bearing the mark “Javelo” was made by the same company? The most important factor is the degree of resemblance between the two marks. As the Registrar said, this degree of resemblance is low. The other factors set out in subsection 6(5) of the Act paint a hardly convincing picture. Clorox has not proven that the “Javex” marks have inherent or acquired distinctiveness of such a degree that it leads to a finding of confusion. The fact that the products associated with the two marks are the same is not sufficient to counterbalance the low degree of resemblance. All in all, I find that there is no confusion between the parties’ marks.

Clorox appealed Justice Grammond’s decision to the Court of Appeal, arguing, on the issue of confusion, that Justice Grammond erred by applying the wrong legal test for confusion or by failing to consider the evidence. More specifically, Clorox argued that Justice Grammond erred in writing that a consumer is not always hurried to the same extent.

The Court of Appeal rejected this argument, holding that Justice Grammond’s conclusion is consistent with the decision of the Supreme Court of Canada in Mattel, where Justice Binnie commented that “A consumer does not of course approach every purchasing decision with the same attention, or lack of it. When buying a car or a refrigerator, more care will naturally be taken than when buying a doll or a mid-priced meal…” (para 58). The Court of Appeal concluded that it was therefore within Justice Grammond’s authority to consider the degree of care as a factor in assessing the likelihood of confusion:

[36]  Contrary to Clorox’s argument, the degree of care of the relevant consumer may vary with the circumstances, and the normal channels of trade for a particular good must also be taken into account. This is necessarily the case for JAVELO bleach, which must be ordered by tanker-truck quantities. The Federal Court could therefore take that factor into consideration in assessing the likelihood of confusion, and made no error of law in doing so.

A copy of the judgement and reasons may be found here.