Federal Appeal

Industrial and Intellectual Property

Judge did not err in finding that board could reasonably find likelihood of confusion

Appellant was Chinese bakery and food products company that applied to register trademarks. Respondent opposed applications on grounds of confusion with its registered trademarks. Trademarks opposition board determined that appellant had not discharged burden of demonstrating, on balance of probabilities, that there was no reasonable likelihood of confusion with respondent’s trademarks. Board allowed grounds of opposition raised by respondent based on s. 12(1)(d) of Trademarks Act for overlapping wares only. Board found that appellant failed to meet burden under s. 16(3) of act to establish no likelihood of confusion with respondent’s trademarks. Board found that respondent met its burden under s. 38(2)(d) in establishing that its trademarks had become sufficiently known to negate distinctiveness of appellant’s trademarks. Appellant appealed. Judge determined that new evidence filed by appellant in form of affidavit was inadmissible on basis that when it was sworn it was not accompanied by certificate acknowledging that expert had read code of conduct for expert witnesses. Judge found that appellant had not discharged burden to show, on balance of probabilities, that there would be no confusion with existing registered trademarks of respondent. Judge concluded that board’s decisions were both reasonable and correct. Appellant appealed. Appeal dismissed. Judge erred in finding affidavit to be inadmissible in circumstances. However, affidavit was not sufficient to overcome evidence put forward by respondent before board. Affidavit was not significant and would not have materially affected board’s decisions. Affidavit should be given little weight and de novo analysis was not warranted. As affidavit would not have materially changed board’s decisions, appellant’s arguments remained unsupported by evidence. Appellant had not identified any basis upon which judge’s conclusion should be disturbed. Judge did not err in finding that board could reasonably conclude that there was likelihood of confusion in circumstances. Appellant was not entitled to register trademarks, as they were not distinctive.

Saint Honore Cake Shop Ltd. v. Cheung’s Bakery Products Ltd. (Jan. 20, 2015, F.C.A., M. Nadon J.A., Wyman W. Webb J.A., and Richard Boivin J.A., File No. A-344-13) Decision at 232 A.C.W.S. (3d) 767 was affirmed. 254 A.C.W.S. (3d) 859.

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