Bruce Wallner

The applicant, Arterra Wines Canada, appealed a Trademarks Opposition Board decision that rejected its opposition to two trademark applications by Diageo for THE NAKED TURTLE and THE NAKED TURTLE Design in association with rum.

Arterra relied on its registered trademarks for NAKED GRAPE and variations.

The Federal Court found that the Board made palpable and overriding errors in assessing the degree of resemblance between the marks, including dissecting Arterra's mark and failing to consider possible future presentations.

Conducting a redetermination, the Court found a likelihood of confusion given that NAKED GRAPE is well known in Canada, the overlap in the alcoholic beverage industry, and the striking shared component "NAKED".

The appeal was allowed and the Registrar was directed to refuse Diageo's applications.