On April 27, 1992, Lexus Foods Inc. ("Lexus Foods") filed an application with the Registrar of Trade-marks in order to secure registration of the trade-mark LEXUS in association with "canned fruits, canned vegetables, fruit juices and vegetable juices" on the basis of proposed use of the trade-mark in Canada.

Toyota Motor Corporation ("Toyota") filed a statement of opposition against this application alleging confusion with three trade-mark registrations it owned for the trade-mark LEXUS covering, among other things, "motor cars and parts and accessories thereof, repair services".

The Trade-marks Opposition Board dismissed Toyota's opposition in July 1997. Toyota appealed that decision before the Trial Division of the Federal Court of Canada. There, Toyota's appeal was allowed; the Trial Division found the trade-mark "LEXUS" to be a famous trade-mark and considered that Toyota had made its case that there was indeed confusion between the trade-mark LEXUS for cars and the same trade-mark as applied to canned food products. The Court directed the Registrar to refuse Lexus Foods' application for the trade-mark LEXUS. Lexus Foods appealed the Trial Judge's decision before the Federal Court of Appeal.

Questions:

Do you think that the appeal of Lexus Foods against the Trial Judge's decision has merit? If yes, why? Could the same trademark be used by two different businesses?