1.The Cod Oil Drug Company produced a cod oil product that it sold in capsule form to its customers. To identify its products, it produced a capsule with three broad red bandsthe first bearing the letter "C," the second, an "O," and the third, a "D." Each letter was printed in white against the red background to identify the company and its product that was derived from cod liver oil. The centre red band, bearing the letter "O," also acted as a seal that held the two parts of the capsule together. The Cod Oil Drug Company applied for a patent on the method of sealing the two parts of the capsule together, and for registration of the three bands with the letters imprinted as a trademark for its product.In the course of its applications, Cod Oil Drug Company faced objections by Careful Drug Company, a competitor.Careful Drug Company also produced its product in capsule form, but bearing two blue bands, one on each half of the capsule, the first bearing a white "C" and the second, a white "D". Another narrower blue band was used to join the capsule together, but it bore no letter. This had been used by Careful Drug Company for many years before Cod Oil Drug Company developed its capsules, Careful Drug Company did not register it as a trademark or obtain a patent.

a.On what basis could Careful Drug argue that Cod Oil Drug's application for its trademark be rejected? (4 marks)

b.What might Cod Oil Drug argue in response? (2 marks)

Is Cod Oil Drug Company likely to be successful in its patent application?Explain