21 January 2019Trademarks

DJ granted ‘6IX’ TM despite Drake company opposition

A Canadian DJ has been granted a trademark for the term ‘6IX’ after his application was unsuccessfully opposed by October’s Very Own (OVO), a company associated with Toronto-born rapper Drake.

Michael Di Cosmo, a Toronto-based DJ and music producer, proved that he used the term “6IX” long before Drake popularised it as a nickname for Toronto.  He was granted a trademark for the phrase with respect to his DJ services.

It is not clear whether the nickname originates from the city’s 416 postcode or the six boroughs amalgamated into Toronto. In its evidence to the board, OVO said “the 6IX” is well understood to refer to Toronto’s 416 area code.

The decision, from December 2018, was issued by Canada’s Trademarks Opposition Board.

John Simpson, a Toronto-based IP lawyer who represented Di Cosmo, told Canadian newspaper Ottawa Citizen that “if this was a David and Goliath dispute, then David won”.

“I think most people would be surprised that in a dispute over entitlement to register 6IX for DJ services, someone other than Drake won,” Simpson added.

The DJ had also applied to register the mark for goods such as promotional items, men’s and women’s apparel, and outdoor jackets. The board denied this part of the application.

Di Cosmo applied to register the trademark for ‘6IX’ in 2014, but his application was opposed by OVO. The company said the DJ had not used the mark since 2000 as he claimed, and that the mark is not distinctive of the DJ’s goods and services.

In his evidence to the board, Di Cosmo said he has used the mark continuously in the advertising and performance of his DJ services, which includes performing at nightclubs and private events.

He also presented a selection of flyers that have been distributed over the years for events where he performed as “6IX”.

OVO argued that Di Cosmo’s evidence does not show use of the mark since 2000, but rather shows an evolution of different trademarks from “SIK 6IX” to “DJ SIX” and “6IX”.

In its decision, the board ruled that Di Cosmo had successfully shown use of the mark in relation to his DJ services, and dismissed OVO’s allegations as “insufficient”.

In an affidavit, Di Cosmo told the board he distributed goods marked with “6IX” to visitors to his Facebook page and as a prize to winners of contests organised through his Facebook.

OVO alleged that because of this, the DJ had not sold his goods but rather used them as promotional items.

In this regard, the board agreed with OVO and ruled that “the free distribution of t-shirts and other goods for attending a performance, entering a contest or liking Di Cosmo’s Facebook page” does not equate to making a payment for a t-shirt from which Di Cosmo could make a profit.

Therefore, the board denied the registration of the mark for goods.

Jamie Bordman, an IP lawyer who represented OVO, dismissed Simpson’s claims of a broad victory.

“I don’t really think this is a David and Goliath victory at all—the result was split. OVO got half of what it wanted,” Bordman told Ottawa Citizen.

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