2.5 Section 44: Comparison of Trade Marks

Date Published

The usual practice and procedure for section 44 applies to trade marks for plants and plant material.  Words which have a specific meaning to plants or are common to the trade should be taken into consideration (see parts 2.3.1 and 2.3.2 of this chapter).  

The range of goods covered in Class 31 is varied, both in price and the care taken in selection. The users of the goods are also varied, from domestic consumers to large businesses.

Examiners should refer to the rules of comparison in Part 26 of this Manual when making a decision about the degree of similarity between trade marks.

When comparing goods, it is useful to consider when a description may have more than one meaning. For example, “litter” can refer to “bedding material for animals” or “mulch”. Therefore, a claim for litter is considered similar goods to mulch, while a claim for litter for animals is not.

A broad claim for agriculture, aquaculture, horticulture and forestry products is likely to be similar to most specific items in Class 31 because of the scope of the individual definitions:

  • Agriculture – cultivation of land, including crop-raising, forestry, stock-raising; farming (products include any items derived from these activities).
  • Aquaculture – cultivation of food resources from the sea or inland waters (products include algae, kelp, oysters, mussels, fish, etc.)
  • Horticulture – growing of fruit, vegetables, flowers or ornamental plants (products include all plants and plant material).
  • Forestry – planting and taking care of forests (products include any items derived from forests – trees, timber, wood chips, bark mulch, etc).


2.5.1 Similarity of goods within Class 31

The following table can be useful when comparing trade marks that both claim goods in Class 31.

Fruit or vegetables

(broad claim)

Nuts (fruits);

Specific fruits or vegetables

similar

Specific fruit or vegetables

Nuts;

Different specific fruit or vegetables

not similar

Fruit or vegetables

Seeds; Grains; Fruit trees; Plants; Seedlings; Animal feed

not similar

Grass; Turf

Trees; Shrubs; Herbs

not similar

Grass

Seeds; Grains; Plants; Hay; Fodder

similar

Turf

Seeds; Grains; Hay; Fodder

not similar

Turf

Plants

similar

Malt for animals

Malt for brewing and distilling

similar

Plants

Flowers; Seeds; Grains; Trees

similar

Plants

Cut flowers; Flower arrangements

not similar

Seeds; grains

Barley; Oats; Rye; Wheat

similar

Trees

Bulbs; Herbs; Seeds; Grains

not similar

Foodstuffs for animals

Seeds; Grains; Plants; Grass

similar

Dog food; cat food

Seeds; Grains; Plants; Grass

not similar


2.5.2 Overcoming a section 44 ground for rejection

Options are the same as for non-plant trade mark applications.