In June 2019, significant amendments were made to our federal trademark legislation.Prior "use" of a trademark in Canada is no longer required for registration purposes under our new legislation and, in order to have a trademark registered under our new legislation, the trademark must now be "distinctive" in Canada as of the date of filing of the registration application.As was the case under our previous legislation, the Trademarks Office will not permit the registration of a proposed trademark under our new legislation, if the proposed trademark is likely to be "confused" with another trademark registered in Canada.

Case 3 at the end of Chapter 20 in your Textbook is based on a case called "Toyota Jidosha Kabushiki Kaisha v. Lexus Foods Inc. (2000) (Federal Court of Appeal)".In that case, the court allowed the defendant's application to register the trademark "Lexus" in association with the sale of canned fruit in Quebec grocery stores, because "confusion" was unlikely to occur with Toyota's "Lexus" trademark that had been previously registered in association with the sale of automobiles throughout Canada.This was because the "wares" (goods) in question were markedly different (i.e., canned fruit versus automobiles) and the "distribution channels" for the sale of the two product-types were also significantly different (i.e., sales made in Quebec grocery stores versus sales made through car-dealerships across the country).Although the pre-existing Lexus trademark was a "coined word" and was clearly unique, the court held that the "inherent distinctiveness" of the Lexus trademark owned by Toyota could not be the sole determining factor in assessing the likelihood of confusion between the two trademarks in the mind of the public.Rather, the court needed to collectively consider the differences in wares, distribution channels and inherent distinctiveness, when making its final determination.

With this background in mind:

1.How might the basis for registration of a trademark under our new legislation have an impact on the outcome of this case, again if it were to be decided today?