What Is Deviating Trademark Use?

A recent decision of the Federal Court deals with section 45 proceedings and whether use of a variant of the registered trademark by the registrant would establish use of the registered trademark.

It has been often said that the practice of departing from the precise form of the trademark as registered is objectionable and dangerous practice that can lead to the invalidity of the registration. However, it remains to be seen how significant the deviation must be to destroy the validity of the mark. Cautious variations can be made without adverse consequences if the same dominant features are maintained and the differences are so unimportant as to not mislead an unaware purchaser of the wares.