Background: Tweak-D sought to register the trademark "TRIBAL CHOCOLATE" for hair care products. The Registrar objected, citing potential confusion with an existing "TRIBAL" registration associated with hair colorants and dyes??.

Registrar's Decision: Tweak-D's arguments, including the existence of similar marks and a co-existence agreement with the owner of the "TRIBAL" mark, were rejected. The Registrar emphasized the importance of the first word in the mark ("TRIBAL") and found no clear pattern of registrability for similar marks, while also noting that the co-existence agreement was focused on the parties involved rather than consumer protection??.

Federal Court Decision: On appeal, the Federal Court upheld the Registrar's decision. It noted that a pattern of registrability requires more than a few registrations and that the use of both "TRIBAL CHOCOLATE" and "TRIBAL" in hair care products could infer a common source, thus leading to confusion??.

Federal Court of Appeal Decision: The Appeal Court also upheld the rejection of the "TRIBAL CHOCOLATE" application. It emphasized that each trademark application must be assessed individually and that co-existence agreements do not override other confusion analysis factors??.

Key Takeaways: This decision highlights the limited effectiveness of co-existence agreements in overcoming confusion objections in trademark cases in Canada. It also underscores the need for comprehensive evidence regarding the state of the Register, including evidence of prior registrations and actual use in the marketplace??.