In a recent decision of the Federal Court of Canada (the Court) in Blyth Cowbells Brewing Inc. v Bellwoods Brewery Inc., 2022 FC 248, the Court dismissed an appeal from a decision of the Trademarks Opposition Board (TMOB), in which the TMOB refused a trademark application for a Cowbell Mark on the basis of confusion with a registered Bell Design for brewery goods and services.
In this case, both parties are craft brewers in Ontario. Blyth Cowbells Brewing Inc. (Blyth) filed a trademark application for a Cowbell Mark for brewery goods and services. Bellwoods Brewery Inc. and Bellwoods Holdings Inc. (collectively, Bellwoods) opposed the application on the basis that the Cowbell Mark was confusing with its registered bell trademarks.
The TMOB found that there was a reasonable likelihood of confusion between the marks (shown above), granted the opposition, and refused the application for the Cowbell Mark. Blyth appealed.
On appeal, both parties filed new evidence. The Court held that some of the evidence could have led the TMOB to a different conclusion with respect to the length of use, and the extent to which the marks had become known, and therefore the Court undertook a de novo review of the evidence to assess the likelihood of confusion.
The Court noted that Blyth had adopted the Cowbell Mark despite knowledge of Bellwoods’ registered mark, and that they chose a similar bell design, in the same Ontario market, for essentially the same goods and services, and with “eyes wide open they chose to take that risk”. The Court dismissed the appeal, finding that each of the relevant factors favoured Bellwoods and a finding of confusion.
Summary By: Michelle Noonan
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