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Intellectual property - Trade-marks - Confusion - Whether the courts below erred in finding that there can be no likelihood of confusion between two trade-marks unless they are currently in competitive use in the same geographic area - Whether the courts below erred in finding that the likelihood of confusion between two trade-marks can be overcome by the manner in which one is actually used after the relevant date (i.e. by the “get-up” extraneous to the mark itself) - Whether the courts below erred in finding that there was no likelihood of confusion between the Respondent’s “Masterpiece Living” and the Masterpiece Inc. trade name and trade-marks in use prior to the relevant date, and whether the courts erred in refusing to order expungement - Trade-marks Act, R.S.C. 1985, c. T-3, ss. 6, 16.

The parties both operate in the retirement residence industry. The Appellant claimed to have been using an evolving series of unregistered trade-marks, all of which used the word “masterpiece”, and some of which also used the word “living”, since 2001. The Appellant began using the mark “Masterpiece Living” in late 2005 or early 2006. The Respondent applied to register the trade-mark “Masterpiece Living” on December 1, 2005. The application was granted. In 2006, the Appellant applied to register the marks “Masterpiece” and “Masterpiece Living”. In September 2006, the Canadian Intellectual Property Office denied the Appellant’s application on the basis that the Respondent had already applied for the mark “Masterpiece Living”. The Appellant applied to expunge the Respondent’s trade-mark on the ground that it was confusing as of the date of registration.