• Case Overview: Tweak-D Inc. appealed a Federal Court decision affirming the Registrar of Trademarks' ruling that its "TRIBAL CHOCOLATE" word mark was not registrable due to confusion with the already registered "TRIBAL" mark.

• Key Legal Points:

  1. Registrar’s Decision: Refused "TRIBAL CHOCOLATE" registration based on confusion with "TRIBAL," registered for similar goods (hair colorants, dyes).
  2. Federal Court’s Affirmation: Agreed with the Registrar, emphasizing the similar appearance, goods, and trade channels of both marks.
  3. Appellant’s Arguments: Contested the standards of review applied and the assessment of likely confusion. Also, raised issues about prior registrations and a co-existence agreement.

• Court's Analysis & Decision:

  • Standards of Review: Housen v. Nikolaisen standards upheld, focusing on correctness for legal questions and palpable and overriding error for factual or mixed matters.
  • Confusion Assessment: The likelihood of confusion is a mixed question of fact and law, reviewed for palpable and overriding error. The court upheld the Registrar's assessment.
  • Co-existence Agreement: The court found that while relevant, this agreement did not outweigh other factors in determining confusion under subsection 6(5) of the Act.
  • Trademark Registrations: The court rejected the appellant's argument regarding inconsistencies in prior registrations.

• Outcome: Appeal dismissed with costs. The court supported the Federal Court’s and Registrar’s conclusions that the use of "TRIBAL CHOCOLATE" for hair care products would likely lead to confusion with the "TRIBAL" mark.

Key Takeaway: This case emphasizes the importance of evaluating potential confusion in trademark registration, considering factors like appearance, goods' nature, and market channels. The existence of a co-existence agreement does not necessarily override other confusion factors.