Federal Court Considers Test For New Evidence On Trademark Appeal, Refuses Trademark Application For CHEF’S OWN

On October 10, 2025, the Federal Court of Canada (the Court) issued its decision in Yat Sun Food Products Ltd. v Griffith Foods International Inc., 2025 FC 1688, allowing an appeal of a decision of the Trademarks Opposition Board (TMOB) which dismissed Yat Sun Food Products Ltd.’s (Yat Sun) opposition to Griffith Foods International Inc.’s (Griffith) trademark CHEF’S OWN (the Mark), for various food sauces and seasoning.

Yat Sun opposed Griffith’s Mark on the basis of confusion with its nearly identical CHEFS-OWN trademark, registered for fresh bean sprouts. The TMOB rejected Yat Sun’s opposition, finding that the intrinsically different goods, different channels of trade and different target audiences tipped the balance of probabilities in favour of Griffith, making confusion unlikely.

On appeal, the Court considered whether Yat Sun’s new affidavit evidence (New Evidence) is subject to the new leave requirement under current s. 56(5) of the Trademarks Act, which came into force on April 1, 2025. The Court stated it has not yet determined whether the new leave requirement is purely procedural or what criteria must be satisfied for the Court to grant leave; however, the Court found it was not necessary to do so here. While Yat Sun’s Applicant’s Record (containing the New Evidence) was filed on April 17, 2025, the Court exercised its discretion to confirm that Yat Sun’s affidavits of service of the New Evidence on Griffith and on the Canadian Intellectual Property Office were placed on the court file on January 20, 2025. Thus, the Court deemed the New Evidence to have been filed as of January 20, 2025, when the previous s. 56(5) was still in effect. 

The Court went on to find that a portion of the New Evidence was material. Yat Sun filed evidence showing that, in addition to retail sales, it had been selling bean sprouts in the wholesale channel of trade and that the parties have overlapping customers. Although Yat Sun had not used its CHEFS-OWN trademark in the wholesale channel yet, the Court noted this was not a situation where Yat Sun would have had to expand its existing channels of trade and Yat Sun would have been entitled to use its trademark in that channel of trade.

The Court then conducted a de novo review of certain factors in the confusion analysis. The Court was not persuaded that the parties’ goods are as disparate as found by the TMOB, and found that the parties both produced food products intended for sale in overlapping (i.e., wholesale) channels of trade that could be used in the same recipes or dishes. In view of the new material evidence, the Court found that the likelihood of confusion balance tipped in favour of Yat Sun. As a result, the Court set aside the decision of the TMOB and refused Griffith’s application for the Mark.

Summary By: Claire Bettio