The Supreme Court has dismissed Osmose-Pentox’s leave for appeal for infringement of the CONSERVATOR design mark. The second letter “O” is replaced with a hard hat in the mark.
The Supreme Court had summarized the leave as follows: The applicant, Osmose-Pentox, manufactures and sells wood coatings and wood preservatives under various trade-marks. One of the products it produces is a wood primer sealer sold in containers bearing a label with the design mark. In 2002, Osmose-Pentox instituted proceedings against the respondent, Société Laurentides, for infringement of its right to the exclusive use of its registered trade-mark. Société Laurentides had been producing a wood primer sealer with a label on which it was written “Wood CONSERVATOR” and “CONSERVATEUR pour bois”. The Federal Court found that there was no trade-mark infringement within the meaning of s. 20(1) of the Trade-marks Act, R.S.C. 1985, c. T-13 (the “Act”), and dismissed the action. The Court also dismissed Osmose-Pentox’s arguments with respect to confusion and passing-off. The Federal Court of Appeal dismissed the appeal.