Justice Gleason of the Federal Court held that trade-marks containing the word “Fusion” were not likely to be confusing with trade-marks containing the same word in Distribution Prosol PS Ltd v Custom Building Products Ltd, 2015 FC 1170.
Custom, which specializes in tile and stone installation, registered trade-marks containing “FUSION PRO” in connection with grout products in October 2013.
Prosol, which distributes and sells floor-covering products, registered the trademarks FUSION FORCE and FUSION PATCH in September 2013, and also claimed the use of common law trade-marks containing the word “fusion”.
Prosol applied to the Federal Court to expunge Custom’s Marks on the basis that they were likely to create confusion as to the source of the wares associated with them.
Justice Gleason applied the test for confusion articulated in Masterpiece. Justice Gleason held that the marks differed in appearance and in sound and held that consumers would focus on the non-“Fusion” portion of the trade-marks because “Fusion” is commonly used in the flooring business. In addition, Custom’s sales were made at Home Depot while Prosol sold to traders and floor installers, and while the products were in the same category of flooring, they were not identical in so far as one product was an adhesive while the other was a grout.
Justice Gleason concluded that there was no likelihood of confusion between the Prosol Marks and the Custom Marks and dismissed the application.
Justice Gleason refused to consider an allegation that Custom’s trade-marks should be expunged because they were not distinctive because it was not raised in the Notice of Application.
A copy of Justice Gleason’s Judgement and Reasons may be found here.