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A Horse of a Different Colour: OWGM successfully appeals Trademarks Opposition Board decision to the Federal Court

Bruce M. Green of Oyen Wiggs Green & Mutala LLP represented San Miguel Brewing International Limited in successfully appealing a Trademarks Opposition Board’s decision which had refused San Miguel’s application to register its trademark RED HORSE & DESIGN on beer on the grounds of confusion with Molson Canada 2005’s trademark for BLACK HORSE. In setting aside the Board’s decision, Justice Phelan of the Federal Court found that there was no likelihood of confusion between San Miguel’s and Molson’s trademarks for beer. The Court ruled that it would be unlikely that an ordinary beer-drinking consumer would think that RED HORSE beer must be made by the same company that makes BLACK HORSE beer, and that the Board’s decision, in effect, granted Molson an unreasonable monopoly over the word HORSE of any colour in relation to beer. Justice Phelan of the Federal Court stated that, “Applied to the beer consumer (the relevant ‘ordinary person’ at the bar or beer/liquor store), I am of the view that the ordinary beer drinker is sensitive to the names of beers and to what they know and like. The test is premised on the ordinary beer drinking consumer – not on what might be a legal fiction of the non-beer drinking life partner who is asked to pick up beer.” See full article here and see full court decision here.

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