No Sweet Victory For SWISSKISS: FCA Dismisses Trademark Appeal But Leaves Door Open For Online Survey Evidence

On February 25, 2026, the Federal Court of Appeal (FCA) issued its decision in Promotion in Motion, Inc. v Hershey Chocolate & Confectionery LLC, 2026 FCA 40, dismissing an appeal of a Federal Court (FC) decision, which upheld the Registrar of Trademarks’ refusal to register Promotion in Motion, Inc’s (PIM’s) SWISSKISS trademarks for the goods “Chocolate of Swiss origin”.

As previously reported by the E-TIPS® Newsletter here, the FC concluded that SWISS (a certification mark registered under s. 25 of the Trademarks Act) is incapable of distinguishing PIM’s SWISSKISS marks from Hershey’s KISS and KISSES marks, and PIM failed to  demonstrate that there was no likelihood of confusion between the marks. The FC also found that most of the evidence filed with the court, including survey evidence, was inadmissible and immaterial due to reliability and validity issues.   

On appeal before the FCA, two issues were raised: (1) whether the FC erred in focusing on the KISS element and in holding that the SWISS element is a descriptive certification mark that cannot be distinctive; and (2) whether the FC erred in concluding the survey evidence was inadmissible.

On the first issue, the FCA found that the FC did not err in its confusion analysis and its conclusions regarding a descriptive certification mark.  The FCA agreed that the SWISS component is descriptive of the place of origin of the goods and “therefore no (or very little) distinctiveness”, and thus the KISS component is the most striking part of both parties’ marks.

Despite noting that the FC may have gone too far in excluding online Internet-based panel surveys that do not involve a “person in the loop”, the FCA rejected the second ground of appeal, holding that there were no palpable and overriding errors in the FC’s assessment of the validity and reliability of the survey evidence.  Justice de Montigny noted that, although Internet surveys may be imperfect, they may provide valid evidence to inform the confusion analysis when properly designed and implemented, and indicated that he would be “reluctant, at this early stage, to unequivocally rule out this possibility irrespective of the particular facts of each case and of each survey.”

Summary By: Michelle Noonan