Promotion In Motion Inc. v. Hershey Chocolate & Confectionery LLC, 2024 FC 556
Justice Tsimberis - 2024-04-09
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The court decision concerns an appeal under the Trademarks Act challenging a decision by the Trademarks Opposition Board regarding the registration of the SWISSKISS Trademarks for "Chocolate of Swiss origin." The Board refused the applications, finding a likelihood of confusion with Hershey’s KISS and KISSES Trademarks for chocolate products. The applicant sought to set aside the decision, arguing various legal errors by the Board, including issues of generic use of the term "KISS," distinctiveness of the SWISSKISS Trademarks, and confusion analysis. The court dismissed the appeal, finding that most of the new evidence submitted was immaterial, upholding the Board's findings regarding confusion and distinctiveness. The decision highlighted the issue of whether "SWISS" in the trademarks is descriptive of the geographic origin of the chocolates and lacks distinctiveness. Ultimately, the court upheld the Board's decision and dismissed the appeal with costs to Hershey.
Decision relates to:
- T-853-20 - PROMOTION IN MOTION, INC. v. HERSHEY CHOCOLATE & CONFECTIONARY CORPORATION
- A-171-24(2024 FCA 201) - which is an appeal from this decision